Cahalane v. Skydive Cape Cod, Inc.
33 Mass. L. Rptr. 474 (2016)
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Rule of Law:
A comprehensive and explicit liability waiver for a voluntary recreational activity is generally enforceable against claims of ordinary negligence, unless procured by fraud, duress, or deceit, or if it violates public policy. Such waivers do not, however, bar claims for gross negligence.
Facts:
- Tricia Cahalane visited Skydive Cape Cod on July 25, 2012, to participate in a tandem skydive.
- Before the jump, Cahalane signed and initialed several documents explicitly waiving her right to sue Skydive Cape Cod and other involved parties for any injury, including those caused by negligence.
- The waiver stated that she assumed the risk of serious injury or death and gave up important legal rights.
- Cahalane was offered the option to pay $750 to purchase a release from the waiver, which she declined after an employee described the provision as "standard waiver language."
- During the skydive, her instructor, Marcus Silva, performed a "hook turn" maneuver as they prepared to land.
- Contrary to instructions to lift her legs into a seated position for landing, Cahalane's legs were straight when she landed.
- Upon landing, Cahalane fractured both of her femurs.
Procedural Posture:
- Tricia Cahalane filed a lawsuit in a Massachusetts trial court against Skydive Cape Cod, Inc., its owner Jimmy Mendonca, instructor Marcus Silva, and the airport management company, Cape Cod Flying Circus, Inc., and its owner, Timothy Howard.
- The complaint alleged gross negligence, strict liability, deceit, and misrepresentation.
- All defendants filed motions for summary judgment, arguing that the liability waivers signed by Cahalane barred her claims.
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Issue:
Does a liability waiver signed by a participant before a tandem skydive bar claims for ordinary negligence, gross negligence, and strict liability against the skydiving company and related parties for injuries sustained during the activity?
Opinions:
Majority - Curran, Dennis J., J.
Yes, for the claims of ordinary negligence and strict liability; No, for the claim of gross negligence, although the facts presented do not support such a claim. A clear and voluntary liability waiver for a recreational activity is enforceable and bars claims for ordinary negligence. The court reasoned that covenants not to sue are generally valid unless they are unconscionable or violate public policy. Here, the waiver was not procedurally unconscionable, as being presented with it on the day of the activity or having unequal bargaining power does not invalidate it. It was also not substantively unconscionable, as private parties are free to allocate risks for recreational activities, a practice widely upheld by courts. While such waivers cannot release liability for gross negligence as a matter of public policy, the plaintiff failed to show that the defendants' actions—such as performing a hook turn or jumping in debatable wind conditions—rose to the high level of culpability and indifference to duty required for gross negligence. Finally, the court held that skydiving is not an "abnormally dangerous activity" subject to strict liability because the risks can be managed with reasonable care and the activity is not uncommon.
Analysis:
This decision reinforces the strong legal precedent in Massachusetts favoring the enforcement of liability waivers for voluntary, inherently risky recreational activities. It illustrates the high bar a plaintiff must clear to invalidate such a waiver, either by proving unconscionability or by demonstrating conduct that rises to the level of gross negligence. The case serves as a clear warning to participants that they are generally bound by the documents they sign and will likely be found to have assumed the risks associated with dangerous sports. For future cases, this opinion solidifies the distinction between ordinary negligence (which can be waived) and gross negligence (which cannot), while narrowly defining the latter to exclude many common forms of operator error in high-risk contexts.
