May 1, 2008
By John S. Yodice
John S. Yodice and Associates serve as legal counselors to AOPA from offices in Washington, D.C., and Frederick, Maryland.
Last year in this column we reported an Illinois case that seemed to represent an up-cycle in giving effect to liability release forms (sometimes called “covenants not to sue,” and “exculpatory agreements;” see “ Pilot Counsel: Liability Release Forms,” September 2007 AOPA Pilot). These are forms that many owners and pilots have used in an effort to control the liability that could result from the operation of a general aviation aircraft.
The AOPA Web site contains a sample passenger liability release agreement (along with important cautionary language about its use) that resulted from numerous member requests. We could never be sure what effect would be given them. We have tried to track the cases and report them to you as they develop. The potential for liability has remained relatively constant over the years; however, the effect given to such agreements by the courts has run in cycles. The effect has even varied among states, since tort law is a matter of state law, but even in the most liberal states, it seems to have been cyclical.
Here is another case seeming to continue the up-cycle reported last month (“ Pilot Counsel: What is a ‘Congested Area’?” April AOPA Pilot). A father and his daughter decided to take a sightseeing flight over the Santa Barbara area in a Waco biplane. As is its usual business practice, the sightseeing company offering these flights required its customers to sign a “High Risk Activity Release, Waiver, and Assumption of Risk Agreement.” Here is what the agreement said:
“I understand that participation in biplane or other aircraft tours is a high risk activity and that serious injury or death may occur. I voluntarily assume all risk, known and unknown, of injuries, however caused, even if caused whole or in part by the action, inaction, or negligence of the released parties to the fullest extent allowed by law.”
Prior to their flight, the father and daughter signed the form. The pilot had already made several flights in the airplane earlier in the day, all without incident. However, on this flight, the Waco lost power and had to make an emergency landing. In the landing the father and daughter were injured (the extent of the injuries was not reported). The inevitable lawsuit followed.
In the suit, a California trial court granted summary judgment in favor of the sightseeing company and against the father and daughter. The trial court ruled that the release and waiver of liability agreement barred the suit. A California appellate court affirmed the judgment.
The lawyers for the injured parties, as was their duty to their clients, tried to avoid the effect of the release by arguing that it was hurriedly signed. That argument failed because the release was signed 30 minutes before the flight, and at the time the father and daughter were advised that their money would be refunded if they decided not to sign the release.
The court saw no surprise element supporting the “hurriedly signed” argument. The lawyers also argued that such an exculpatory agreement is contrary to public policy. That argument too failed. The court held that a recreational airplane ride was not the kind of essential service in which such a release would be against public policy.
This case involved what was essentially a commercial operation where one would expect a court to be more inclined to find liability. So, even more so, it does seem to represent a judicial attitude that would favor the effectiveness of a liability release form when used in the context of a private general aviation operation.
However, the appellate court did offer an important qualification. It did indicate that the release would not be a bar to a suit for gross negligence, fraud, or a willful wrong (which has been the general rule over the years). And the court did indicate that a release of liability for future ordinary negligence could be void on public policy grounds depending on the overall transaction, with special emphasis on the importance of the underlying service or program, and the relative bargaining relationship of the parties.
In this case, what the court called a “recreational airplane ride” where the riders were given time to consider what they were signing, and were offered a refund if they did not sign, did not raise those kinds of public policy considerations.
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