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Powers v. The Superior Court Of Sacramento County, 196 Cal. App. 3d 318; 242 Cal. Rptr. 55; 1987 Cal. App. LEXIS 2330

Powers v. The Superior Court Of Sacramento County, 196 Cal. App. 3d 318; 242 Cal. Rptr. 55; 1987 Cal. App. LEXIS 2330

Richard Powers, Petitioner, v. The Superior Court Of Sacramento County, Respondent; Dixie Hoffman and Gerald Hoffman, et al., Real Parties in Interest

No. C003057

Court of Appeal of California, Third Appellate District

196 Cal. App. 3d 318; 242 Cal. Rptr. 55; 1987 Cal. App. LEXIS 2330

November 18, 1987

CALIFORNIA OFFICIAL REPORTS SUMMARY The Court of Appeal issued a writ of mandate directing the trial court to set aside its order granting plaintiff’s motion for summary adjudication in an action by her for injuries she received when the engine failed in the ultralight aircraft she rented from defendant. At the time she rented the aircraft, plaintiff signed two agreements containing provisions releasing and indemnifying defendant from any liability for injury arising out of plaintiff’s use of the aircraft. However, one agreement was less inclusive than the other, in that it did not release defendant from negligence. On cross motions for summary adjudication of issues, the trial court granted plaintiff’s motion and denied defendant’s, finding that the existence of two separate agreements created an ambiguity which abrogated their effectiveness. Accordingly, it found that the more inclusive and specific agreement should be disregarded. The Court of Appeal, however, held that neither agreement suffered from any defect that could void the exculpatory language absolving defendant from liability, since each was clearly written, easily legible, and specifically phrased. (Opinion by Puglia, P. J., with Evans and Sims, JJ., concurring.)

The Court of Appeal issued a writ of mandate directing the trial court to set aside its order granting plaintiff’s motion for summary adjudication in an action by her for injuries she received when the engine failed in the ultralight aircraft she rented from defendant. At the time she rented the aircraft, plaintiff signed two agreements containing provisions releasing and indemnifying defendant from any liability for injury arising out of plaintiff’s use of the aircraft. However, one agreement was less inclusive than the other, in that it did not release defendant from negligence. On cross motions for summary adjudication of issues, the trial court granted plaintiff’s motion and denied defendant’s, finding that the existence of two separate agreements created an ambiguity which abrogated their effectiveness. Accordingly, it found that the more inclusive and specific agreement should be disregarded. The Court of Appeal, however, held that neither agreement suffered from any defect that could void the exculpatory language absolving defendant from liability, since each was clearly written, easily legible, and specifically phrased. (Opinion by Puglia, P. J., with Evans and Sims, JJ., concurring.)

HEADNOTES

CALIFORNIA OFFICIAL REPORTS HEADNOTES

Classified to California Digest of Official Reports, 3d Series

(1a) (1b) Contracts § 30–Construction and Interpretation–Ambiguities, Repugnancies and Uncertainties–Release and Indemnification Agreements. –In an action by a student pilot who was injured when the engine failed in the ultralight aircraft she rented from defendant, two agreements signed by plaintiff before takeoff, releasing and indemnifying defendant from any liability for injury arising out of plaintiff’s use of the aircraft, were sufficiently clear and unambiguous to constitute an effective defense, despite the fact that one was somewhat less inclusive than the other by not releasing defendant from negligence. Each agreement was clearly written, easily legible, and specifically phrased. The trial court thus erred in finding, on the parties’ cross motions for summary adjudication of issues, that the minor discrepancy rendered the documents ambiguous and that the more specific and inclusive agreement should be disregarded.

(2) Contracts § 30–Construction and Interpretation–Ambiguities, Repugnancies and Uncertainties–Release and Indemnity Agreements. –Release, indemnity and similar exculpatory provisions are binding on the signatories and enforceable so long as they are clear, explicit and comprehensible in each of their essential details. Such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement.

COUNSEL: Peter Axelrod and Reid & Axelrod for Petitioner.

No appearance for Respondent.

J. Chauncey Hayes, Paul D. Hoskins, Longyear & Hayes and James Elmer for Real Parties in Interest.

JUDGES: Opinion by Puglia, P. J., with Evans and Sims, JJ., concurring.

OPINION BY: PUGLIA

OPINION

[*319] [**55] For the second time, we are called upon to undertake interlocutory review of the trial court’s ruling on cross-motions for summary adjudication of issues in the underlying action for personal injuries and loss of consortium. The issue presented by the earlier petition as well as the instant one concerns [***2] the enforceability and effect of two documents signed by real party in interest, Dixie Hoffman, when she rented an ultralight aircraft from petitioner (defendant). Those writings included the basic rental terms as well as provisions purporting to release and indemnify defendant [*320] from any liability for injuries to person or property arising out of Dixie Hoffman’s use of the ultralight aircraft for recreational flying. We attach the two agreements to this opinion as Appendices A and B.

The agreements were signed on May 10, 1984, immediately before Dixie Hoffman’s [**56] first solo flight in an ultralight. After takeoff, the aircraft’s engine failed and it crashed, striking a stack of baled hay. Dixie Hoffman’s husband, real party in interest and coplaintiff Gerald Hoffman, observed the accident. Dixie Hoffman and her husband (plaintiffs) sued defendant Powers and several other individuals and entities for personal injuries, emotional distress, and loss of consortium.

Both sides sought summary adjudication of the question whether the release and indemnity provisions were valid and effective. Plaintiffs requested a finding that only the exculpatory language contained [***3] in the less inclusive of the two release agreements (Appen. B), which did not specifically absolve defendant of liability for negligence, was enforceable. Defendant asked for an adjudication that the release and indemnity provisions protected him from liability on all causes of action. In its first ruling the superior court denied both motions on the ground that there was a triable issue of fact as to whether the language in question was sufficiently clear and unambiguous to be enforceable. (See Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 318 [195 Cal.Rptr. 90].) At the mutual request of the parties we issued a writ of mandate directing the superior court to rule on the motions, on the ground that whether the writings were ambiguous is a question of law. (C000883 and C000885.) On reconsideration, the lower court held that the existence of two separate agreements created an ambiguity which abrogated their effectiveness. Accordingly, it granted plaintiffs’ motion for summary adjudication and denied defendant’s. (1a) Defendant contends that the trial court has again erred. We agree.

The contractual provisions in dispute are, as noted, [***4] found in a pair of agreements signed by plaintiff Dixie Hoffman immediately prior to takeoff. The first bears the heading “Waiver and Release From Liability and Indemnity Agreement.” (Appen. A.) The other is entitled “Aircraft Rental and Student Instruction Agreement and Release from Liability.” (Appen. B.) Both are in a standard size type, easily legible, with no fine print.

(2) [HN1] Release, indemnity and similar exculpatory provisions are binding on the signatories and enforceable so long as they are ” . . . clear, explicit and comprehensible in each [of their] essential details. Such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement.” ( Ferrell v. Southern Nevada Off-Road [*321] Enthusiasts, Ltd., supra, 147 Cal.App.3d at p. 318; and see Hulsey v. Elsinor Parachute Center (1985) 168 Cal.App.3d 333, 340-341 [214 Cal.Rptr. 194].)

(1b) Plaintiffs do not contend that either of the agreements considered individually fails to meet these criteria. Rather, relying on Conservatorship of Link (1984) 158 Cal.App.3d 138 [205 Cal.Rptr. 513], they assert that the use of two writings, containing [***5] different (but not conflicting) language, creates an inherent ambiguity which requires that the more inclusive and specific agreement (Appen. A) be disregarded. Defendant, of course, takes the position that both contracts are effective and binding and protect him from liability.

In Conservatorship of Link, supra, the court considered the enforceability of exculpatory wording contained in two documents signed as a condition of entry into the “pit” area of a car racing event. The first release was printed at the top of a sign-in sheet which the releasor signed upon entry to the track. The other was a “pit pass” which was signed and retained by Link containing more general language which did not specifically absolve the issuer of liability for negligence. The provision appended to the sign-in sheet was in five-and-one-half-point type ” . . . so small that one could conclude defendants never intended it to be read.” ( Id., at p. 141.) Furthermore, the exculpatory language was so situated that it would not be easily noticed, and was “contained in the third paragraph in a convoluted 193-word sentence.” ( Id., at p. 143.) These features, in the opinion of the Link court, [***6] rendered the sign-in sheet release insufficiently clear, [**57] explicit and free from ambiguity to be enforceable. The court therefore concluded that only the pit pass, which did not specifically limit liability based on negligence, constituted the parties’ understanding. In so holding, the court stated “[defendants’] use of two release agreements framed in different language created an ambiguous, confusing situation which must be resolved against defendants.” (Ibid.)

In the instant case, plaintiffs contend that the last quoted excerpt from Conservatorship of Link compels a similar result in any situation where there are two discrete contracts containing different terms. We think plaintiffs’ interpretation of the Link decision is unduly broad. The conclusion reached there was clearly premised on the determination that the more specific and all encompassing terms in the sign-in sheet were too obscure, uncertain and diminutive in type size to be relied upon. Unlike plaintiffs, we do not find in Link any implication that clearly written, easily legible and specifically phrased release and indemnity terms will be denied effect merely because they appear in [***7] multiple documents containing somewhat different exculpatory clauses.

[*322] Neither the “Waiver and Release From Liability and Indemnity Agreement” (Appen. [*324] A) nor the “Aircraft Rental and Student Instruction Agreement and Release From Liability” (Appen. B) signed by plaintiff suffers from any of the defects relied upon by the Link court to void the exculpatory language found on the sign-in sheet considered in that case. Accordingly, we shall direct the superior court to set aside its order granting plaintiffs’ motion for summary adjudication.

However, we shall not grant all the relief prayed for in defendant’s petition. In addition to asking for vacation of the trial court’s order granting plaintiffs’ motion, defendant also asks us to direct that his motion be granted in its entirety. Defendant’s motion sought not only an adjudication that both release and indemnity agreements are sufficiently clear and unambiguous to constitute an effective defense to plaintiff Dixie Hoffman’s claims, but also to require that she indemnify defendant for any damages awarded Gerald Hoffman in his emotional distress and loss of consortium action. From the record we have been [***8] furnished, it appears that the trial court, in granting plaintiffs’ motion, found it unnecessary to rule on this latter issue, nor was the court required to decide whether the “Waiver and Release From Liability and Indemnity Agreement” (Appen. A) constituted a valid contract in light of language in the document reciting that the purpose of the flight was to determine if the releasor wished to buy the aircraft, whereas it was stipulated plaintiff had no such purpose. The effect, if any, of these contractual provisions and the question of fraud in the inducement we leave for the trial court to resolve in the first instance.

Let a peremptory writ of mandate issue directing respondent court to vacate its order granting plaintiffs’ motion for summary adjudication and to enter a new order denying that motion. The writ shall further direct respondent court to vacate its order denying defendant’s motion for summary adjudication, and redetermine that motion in accordance with the views expressed herein.

[*323] Appendix A

WAIVER AND RELEASE FROM LIABILITY AND INDEMNITY AGREEMENT

WHEREAS, the undersigned releasor is desirous that he be permitted to ride, fly and otherwise operate a [***9] FlightStar and/or DualStar ultralight aircraft (the “Aircraft”) manufactured by PIONEER INTERNATIONAL AIRCRAFT, INC. (“PIONEER”) for the purpose of determining if he wishes to buy such Aircraft;

WHEREAS, in order to be permitted to ride, fly and otherwise operate the Aircraft, he is willing to take upon himself, and release all others from, the full responsibility for any and all injuries, losses and damages which may occur to or be inflicted upon himself or his property, or the property or person of any other individual or entity, including either or both ULTRA ONE and “PIONEER” the owner of the Aircraft, and

WHEREAS, the undersigned releasor fully understands that any instructions which are given to him concerning the operation of the Aircraft, and any permission to ride, fly or otherwise operate the Aircraft, have been undertaken and permitted only because of his willingness to waive and release the claims and rights mentioned in this document, and

WHEREAS, the undersigned releasor fully understands that flying and piloting any aircraft in general and the Aircraft in particular is potential hazardous and the possibility of serious injury or death exists, and

WHEREAS, the [***10] undersigned releasor fully understands that flying and piloting the Aircraft is separate, distinct, and different in many respects from flying and piloting other aircraft;

THEREFORE, in consideration of the permission granted to him to ride, fly and otherwise operate the Aircraft, and the instructions relating thereto, the undersigned releasor unconditionally agrees as follows:

1. He hereby WAIVES and RELEASES any and all claims, rights and/or causes of action which he now has or may have against either or both ULTRA ONE and “PIONEER”, and their respective officers, directors, stockholders and employees, FOR ANY AND ALL CLAIMS, SUITS, LIABILITY, INJURIES, LOSSES OR DAMAGES which may occur to or be inflicted upon himself or his property, including but not limited to those which relate to, or which may in any way arise out of:

(A) Any negligence of either or both ULTRA ONE and “PIONEER” and their respective officers, directors, stockholders and employees.

(B) Any attempt by releasor, whether successful or not, to ride, fly or otherwise operate the Aircraft.

(C) Any instruction, or lack thereof, provided to releasor concerning flying, operating, maintaining and assembling [***11] the Aircraft.

2. He hereby indemnifies and holds harmless those persons, firms or corporations listed above from any and all claims, suits, liability, injuries, losses and damages to the person or property of any individual or entity which arises out of his operation or attempted operation of the Aircraft.

3. He acknowledges that he is in good physical condition, is physically able to operate the Aircraft, and has become sufficiently familiar with its characteristics and its operation, so that he is willing to undertake the operation of the same at his own risk.

4. He acknowledges that he is fully aware this flight involves travel in three dimensions, and that such activity is subject to mishap, injury and possibly even death.

5. He acknowledges that flying and piloting the Aircraft is separate, distinct and different in many respects from flying and piloting other aircraft.

6. He acknowledges that there are NO EXPRESS WARRANTIES, NO IMPLIED WARRANTY OF MERCHANTABILITY and NO WARRANTY OF FITNESS OF THE AIRCRAFT FOR ANY PARTICULAR PURPOSE, and that the flight is attempted solely at his own risk.

7. He is over eighteen (18) years age, and if married, has executed this document [***12] on behalf of himself, his spouse and the marital community which they compromise.

8. The contents of this document shall be forever binding upon the releasor, his dependents, heirs, personal representatives and estate. The use of the masculine gender herein shall apply equally to males and females.

9. HE HAS READ THIS ENTIRE DOCUMENT, UNDERSTANDS ITS CONTENTS, KNOWS OF THE TRUTHFULNESS THEREOF, AND HAS BEEN PROVIDED WITH A COPY OF THE SAME.

IN WITNESS OF MY AGREEMENT to the foregoing, the undersigned releasor executes this document on the 19 day of May, 1984

THIS IS A RELEASE

Dixie Hoffman

Signature of Releasor

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