Appeals Court: Injured Skydiver Can Sue, Despite Liability Waivers

By: Alan Pollock

Topics: Skydiving

Skydivers in tandem jumps, like these who were photographed at the Chatham airport in September 2012, are instructed to raise their feet before landing. The plaintiff in a lawsuit who was injured on a jump claims that a last-minute maneuver by the instructor caused her feet to swing down, breaking her legs on impact. FILE PHOTO

CHATHAM In a ruling last week, a state appeals court panel decided that a lawsuit filed by a woman who was seriously hurt in a skydiving landing at Chatham Municipal Airport in 2012 could proceed. The justices overturned a lower court ruling that the lengthy liability waiver signed by jumper Tricia Cahalane had indemnified Skydive Cape Cod and the other defendants in the case.

In their July 3 ruling, Justices Mary Sullivan, James Lemire and Joseph Ditkoff noted that while liability waivers can indemnify parties against negligence, “a waiver cannot shield a party from responsibility for its gross negligence or reckless or intentional conduct.” Whether such conduct occurred in this case should be decided by a jury, the appeals court ruled.

Shortly after 12:15 p.m. on July 25, 2012, Cahalane, a Scituate resident, was on a tandem jump with skydive instructor Marcus Silva when the two made a “hard landing” at the airport. Cahalane broke both of her legs, and rescuers had her airlifted to a Boston hospital for emergency treatment. Officials at the time said there was no indication that the skydive operators had done anything wrong, and skydive operations resumed within hours.

Prior to making the dive, Cahalane had read a lengthy liability waiver, signing or initialing it in 46 places. She also hand-copied and signed the statement, “I realize that skydiving, parachuting, flying and all of its related activities are inherently dangerous activities which may result in my serious injury or even death.” The appeals court found that the waiver was clear, “unambiguous and comprehensive.”

Though many facts of the case remain in dispute, the appeals court, for its purposes, agreed with findings that Silva executed a maneuver known as a “hook turn” in the seconds before landing. Though they are considered dangerous by the U.S. Parachute Association, hook turns are sometimes executed to make landings during windy conditions.

Cahalane had been told to lift her legs into a seated position before landing, and had done so, “but moments before landing she felt a pull from the back of the parachute that forced her legs straight downward,” the appeals court ruling reads. “Cahalane fractured both femurs on impact.”

Cahalane’s attorney, Edward Bassett, Jr., of the Worcester-based firm of Mirick, O'Connell, DeMallie and Lougee, said the accident changed his client’s life forever.

“Before the accident, she was an extremely active young woman,” who enjoyed rock climbing, sailing, biking, and competitive running. She can no longer enjoy those activities, and also lost time from work, Bassett said. In the upcoming trial, he will be seeking damages of $1 million.

Christopher Siderwicz, the manager of the Cape Cod Airport in Marstons Mills, gave an affidavit indicating that he had spoken with Silva after the accident. Siderwicz claimed that Silva told him he had warned Skydive Cape Cod owner Jimmy Mendonca that it was too windy to operate that day, and that “Jimmy ignored [Silva’s] warning and ordered [him] to complete the jump and do a hook turn on landing to make up for the wind,” court documents read. Both Mendonca and Silva testified that it was ultimately the instructor’s decision whether it was safe to jump.

For its purposes, the appeals court agreed that the wind speed that day was over 25 mph, and that Silva did, in fact, perform a hook turn.

The plaintiff also claims that, months before the accident, Siderwicz told Chatham Airport Manager Tim Howard that he had revoked Skydive Cape Cod’s right to operate at the Marstons Mills airport because he had safety concerns. In court documents, Howard said that, while it is his responsibility to pass on safety concerns to the airport commission, he did not do so because he believed Siderwicz’s concerns were the result of a personality conflict with Mendonca. On the advice of counsel, Howard declined to comment for this article.

In her suit, Cahalane claimed that the waiver she signed was invalid because it was procured by fraud. She claims that she relied on Skydive Cape Cod’s website postings that claimed it had the best safety record. The appeals court rejected this argument and said Cahalane knew skydiving was dangerous. The evidence did not suggest that she was rushed into signing the waiver, the justices added.

Ultimately, the appeals court ruled that a Middlesex Superior Court judge was wrong to have thrown out the case in 2016.

“We conclude that the judge erred in entering summary judgment for the defendants on Cahalane’s claims of intentional, willful, and grossly negligent conduct,” the justices wrote.

Though some facts remain in dispute, “a reasonable jury could find that Silva’s decision to perform a hook turn in the moments before landing was grossly negligent,” they wrote. In any case, that determination should be made by a jury, the justices ruled.

As for Mendonca’s alleged actions, “a jury could find that Mendonca ordered Silva to jump and that the decision to proceed – in less than ideal weather conditions” was reckless or grossly negligent, they wrote.

Attorney Robert Lawless, who has represented Mendonca and Skydive Cape Cod in the past, did not respond to The Chronicle’s request for comment.

The appeals court indicated that Howard did not have the authority or duty to set standards that deviated from FAA standards, but that he had a duty to report any violations of those standards to the FAA or the airport commission. “A jury should be permitted to determine whether Howard’s failure to report information pertaining to [Skydive Cape Cod] and Mendonca to the commission and the FAA was reckless or grossly negligent,” the justices wrote.

The appeals court ruling has broader implications for other sports adventure businesses, Bassett said.

“People assume that when they sign a multi, multi-page document like this and give up their right to sue, if something goes wrong, that’s it,” he said. The ruling means that even when a person engages in a risky activity and signs a liability waiver, “you never give up your right to bring a suit for gross negligence or reckless conduct,” he said.

Email Alan Pollock at alan @capecodchronicle.com
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