Sky Diving Release defeats claim by Naval Academy student

Boucher v. Riner, et al. 68 Md. App. 539; 514 A.2d 485; 1986 Md. App. LEXIS 391

Boucher v. Riner is a case that examines three issues under Maryland law that are important and to understand an appellate rule of civil procedure in one case. Those issues are: (1) the liability of a third party contractor to a military participant, (2) the validity of releases under Maryland law, and (3) how Maryland law defines Gross Negligence. The release in question also had a bargain component that allowed the signor to opt out of the release for the payment of additional fees. Finally, the appellate civil procedure rules are explained as to why appellate courts do not review issues not previously argued at the trial court level.

The Bargain component of releases is rarely seen now days. However, you can find it referenced in a few current cases. At one time, some states required the opportunity for a signor of a release to be able to bargain or pay more for the option of not signing a release. The normal trip was $100 and to do the trip without a release was $125.00. The $25 difference was not ever opted by enough people to justify the increased risk or cost to the company and their insurance company and has gradually fallen out of favor.

The plaintiff in this case was a student at the US Naval Academy. He signed up to become a member of the Naval Academy Parachuting Club (the Club), a voluntary extracurricular club at the Academy. The club was administered by upperclassman and had a faculty advisor. The plaintiff was trained by upperclassman in how to skydive. The club had a contractual relationship with Parachutes Are Fun, Inc. (Parachutes) a co-defendant in the suit. The club paid a reduced fee and used Parachutes facility and jumpmaster for skydiving. The club used its own equipment and training for club members.

On the day of the accident, the plaintiff jumped with two upper classmen, and a Parachutes jump master. A Parachutes employee was on the ground with a loud speaker directing skydivers as they neared the ground. The employee noticed the plaintiff was going to come close to some electrical lines but decided not to tell the plaintiff. The plaintiff hit the electrical lines suffering injury.

Prior to his jump, the plaintiff had signed a release. The release clause that is quoted in the case is the negligence clause and uses the word negligence. The release covers the defendant Parachutes and “its owners, officers, agents, servants, employees, and lessors and the County of Sussex, its officers, agents, servants and employees.”

The plaintiff filed a two count complaint alleging:

(1) Negligence on the part of the appellees as owners or occupiers of the drop zone, because of the location of the electric lines in relation to the drop zone, and

(2) Gross negligence on the part of the appellees in the performance of their duties.

The defendants filed a motion for summary judgment at the trial court level that was granted. The plaintiff then appealed the decision arguing three issues on appeal.

I. Whether the evidence presented a genuine issue of fact as to the defendants’ gross negligence?

II. Whether the exculpatory agreement signed by the plaintiff shortly before the accident precluded all recovery against the defendants based on negligence?

III. Whether there exists a genuine issue of fact as to the defendant Dunker’s status as an independent contractor?

Under Maryland law, like the majority of states, a release does not protect a defendant from a claim of gross negligence. Gross negligence is defined by the Maryland Courts as conduct “of an extraordinary or outrageous character.” Another definition is looks at the care given to the plaintiff by the defendant: “which even inattentive and thoughtless men never fail to take of their own property,’ it is a violation of good faith.” Alternatively, defined as “an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them.”

Here the acts of Parachutes employee did not rise to the definition of gross negligence. The court reviewed the actions of the employee and determined that the employee:

[W]as attentive to Boucher’s descent, that he was stationed in the proper location, and that he was calling out instructions to Boucher as was expected of him. There was no showing of indifference on the part of Dunker. Rather, the conduct alleged here reflects, at worst, poor judgment on the part of Dunker that, while perhaps amounting to ordinary negligence….

We see no evidence of a premeditated decision, deliberately arrived at, by an indifferent jumpmaster that should have indicated almost certain harm to others.

The second issue the court reviewed was whether the release was valid under Maryland law. Maryland has six factors that may invalidate a release.

[1] It concerns a business of a type generally thought suitable for public regulation.

[2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.

[3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.

[4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.

[5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.

[6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

The court found that the defendants had not performed any of the six criteria that would invalidate the release. Parachutes was not performing a service important or a necessity to the public. The legislature of Maryland had not identified skydiving as important to control. Parachutes had no bargaining advantage, and the plaintiff was not under the control of Parachutes. Moreover, the plaintiff was under no requirement to jump.

The third issue was whether the individual defendant, the employee of the defendant Parachutes, who was directing the plaintiff from the ground was an employee covered under the release or an independent contractor who the plaintiff claimed would not be covered under the release. The court did not look at all issues because the court found the issue had not been argued at the lower court.

Appellate courts have always ruled that they will only review those issues that have already been reviewed at the court below. No new issues can be argued at the appellate court. All information and legal arguments must be brought up, at some point at the trial court level. Failing to do this, a party waives an issue if they do not raise it at the trial court level. For many, this seems like the court is just avoiding the issues but there are valid legal and common sense reasons for this policy, which this court enumerates.

The policy requires that the attorneys fully prepare for trial. If not, trails and appeals would go on forever because every case would be appealed and new evidence would be introduced at each appeal. Having this requirement limits the amount of appeals and forces everyone to be ready from the start. At one time, all important issues are litigated, and the jury has 100% of the information to make a fair and informed decision.

More importantly, because an appellate court cannot hear new evidence, the court would be making a judgment on issues that may not be fully explained or the court has not fully understood.

This brings up a litigation point, the references to the Rules of Civil Procedure. There are several sets of rules that an attorney must follow when litigating a case. These rules are created by the Supreme Court of each state and then modified occasionally by the court by edict and or by court decision. The Rules of Evidence control what the jury can see and hear so that the jury only hears the best evidence, and evidence does not prejudice the jury or one party. The Rules of Civil Procedure are the rules that dictate how you get to trial and appeal cases. Most of the rules define the time when things must occur or filed. However, there are several civil rules that dictate what your pleadings must contain, what size type and how those documents are conveyed to the court and the other parties in a case.

The case is a good case to read in understanding Maryland law, which is consistent with most other cases. Identifying the six areas where releases may not be valid is a major help to someone looking to a release to protect them from lawsuits.

What do you think? Leave a comment.

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