Skydiving Injury Lawyer – Oakland, CA
Skydiving Accident & Injury Attorney
If those who provide … recreational sports services believe the viability of their particular industry rests upon the ability to secure valid releases of liability for future gross negligence — that is, exoneration for the providers’ failure to employ even “slight care,” or for an “extreme departure” from the ordinary standard of conduct — the proper forum in which to present that policy argument, and to seek that broad protection, is the Legislature.
(City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 777–778.)
Growing up in Antioch, California in the 1980’s, I dreamed of skydiving as I watched from my backyard as the skydiv- ers floated down to the earth and landed at the old Antioch Airport. I no longer yearn to jump out of airplanes, but not because I am older and wiser; but because I know that the industry is inherently dangerous. Skydiving itself is NOT inherently dan- gerous. It can be done safely. However, the skydiving industry refuses to accept responsibility for the safety of those who skydive. Instead of focusing on ways to make skydiving safe for all, the skydiving industry focuses on ways to implement enforceable waivers, covenants not to sue, and releases of liability. Skydiv- ing industry “safety” conferences focus how skydiving “drop zone” operators can defend themselves from lawsuits. After handling my first skydiving case, I quickly discovered that skydiving drop zones’ safety programs consist primarily of obtaining waivers from their customers. The United States Parachute Association (USPA) is a private organization that has no regulatory authority yet purports to govern the skydiving industry. The USPA is to skydiving what the Federal Avia- tion Administration (FAA) is to aviation. The USPA issues an annual Skydiver’s Information Manual (SIM). The SIM “pro- vides basic skydiving standards (the Basic Safety Requirements) and recommenda- tions agreed upon by the USPA members for the conduct of safe and enjoyable skydiving.” (2020-21 USPA Skydiver’s Information Manual, page iii.) “However, the recommendations contained herein, unless otherwise stated (such as in the case of compliance with a Federal Avia- tion Regulation), are put forth as guidance and are not mandatory.” (Ibid.) Skydivers maintain that skydiving is a self-regulated sport, and should remain free of any fed- eral or state oversight.
“Voluntary compliance with these pro- cedures [SIM] will protect the best inter- ests of both the participants and the general public.” (2020-21 USPA Skydiver’s Infor- mation Manual, page 6.) It is hard to see how “voluntary compliance” is in the best interests of anyone except the drop zone operators, but that is how the industry is currently structured; it is self-regulated.
Neither the federal nor state govern- ments regulate, inspect, or in any way monitor skydiving activities. That is, until an accident happens. When someone is injured or killed, local police and the FAA are often called to investigate. However, the FAA does not have any authority to regulate actual skydiving operations. The FAA investigation is a fact finding mis- sion only.
The skydiving community is generally more hostile to lawsuits than most indus- tries. There is a sense amongst skydivers that any amount of oversight, whether judicial or legislative, should be avoided at all costs. All too often when a skydiving incident results in injury or death, the cul- pability of the drop zone or any of the non- injured participants is ignored and brushed under the rug. The industry focuses on “personal responsibility” and believes that any accident must be the responsibility of the injured or deceased person.
It is this attitude which leads to a high rate of injuries in the skydiving industry. In 2019, the odds of being injured or killed in a skydiving accident was 1 in every 1,310 jumps. (https://uspa.org/ Find/FAQs/Safety.) With an estimated
3.3 million jumps in 2019, that amounts to over 2,500 injuries and deaths a year. (https://uspa.org/find/faqs/safety.) There are opportunities to reduce these num- bers, but the USPA and its members must examine their approach to safety and drop zone responsibility first.
HURDLES TO ADDRESS WHEN EVALUATING SKYDIVING INJURY CASES
When you notify the drop zone operator of your representation, you are going to receive a copy of the release as well as a strongly worded letter notifying you that there is no applicable insurance coverage, that the wavier protects the drop zone, and that your lawsuit will be met with a counterclaim.
Neither the federal nor state governments regulate, inspect, or in any way monitor skydiving activities.
It is true that there is no liability insur- ance in the skydiving industry that com- pensates skydivers for injuries caused by the drop zone or its agents. It is therefore necessary in skydiving cases to personally name all those that might bear responsibil- ity for the incident to potentially invoke personal homeowners or umbrella cover- ages. This includes the pilot, the crew, the drop zone operators, managers, and any instructors.
Most drop zones have large hangers that contain several aircraft they own and use for their skydiving activities. The tail num- bers of each of these aircraft can be used to find out the owners of the aircraft and lead to the names of other individuals or entities that might be liable. In more cases than not, there are assets to pay for your client’s injuries, but there is no insurance.
Often the FAA will investigate a sky- diving accident and prepare a report that appears on its face to be helpful to your case. Note, though, the FAA report itself is not admissible. Federal employees are usually not subject to state deposition or trial subpoenas and will not cooperate. In the event the parachute malfunctioned, the FAA will hire a master parachute rigger to inspect and prepare a report relating to the condition of the parachute. The master parachute rigger is an indepen- dent contractor, and their report, findings, notes, photographs, etc., are admissible and discoverable.
HOW TO WIN A SKYDIVING LAWSUIT
Often, skydiving waivers are the best maintained product at the drop zone. The waiver will be the main defense in the case. Part of the defense’s playbook in skydiving cases is to file a counter-claim against the plaintiff, usually for breach of contract, indemnification, and declaratory relief. I have fought these successfully with Anti-SLAPP motions to strike, and have won six-figure attorney’s fee awards while doing so.
A. Obtain and Examine the Waiver
One of the first things to do in the skydiv- ing case is to examine the waiver. There is no drop zone in the United States that will knowingly allow someone to skydive without signing a waiver. But make the drop zone produce the signed waiver.
Examine the waiver for enforceability. An illegal contract may not serve as the foundation of any action, either in law or in equity, and when the illegality of the con- tract renders the bargain unenforceable, a court will leave the parties where they were when the action was begun. (Kashani Tsann Kuen China Enterprise Co., Ltd. (App. 2 Dist. 2004), 118 Cal.App.4th 531.) Not all waivers are created equally. The following was a waiver involving a hot air balloon accident:
As a passenger, I agree to help make the flight safe by pointing out any po- tential hazards such as power lines or other balloons in the immediate vicin- ity. I agree to obey the pilot and crew instructions and commands through the duration of these operations. By signing this Agreement, I certify that I have no physical, mental, or medical defect or condition that will prevent me from participating in any balloon activities or compromise or endanger the health or safety of myself or others. Balloons Above the Valley maintains liability insurance with Houston Casu- alty in [sic] amount of $3,000,000.00.
It turned out the Defendant did not maintain a $3,000,000 insurance policy. Why they put that language in the release is hard to understand, but we were able to use this clause to argue that as long as the plaintiff obeyed the pilot and crew com- mands, and in the event they were injured, plaintiff was entitled to recovery up to $3,000,000 in damages. The lesson is to not be afraid of the waiver, but to embrace it and find its weaknesses. The defense will no doubt raise the waiver, so making it part of our case in chief takes the wind out of their sails.
B. Discover and Prove Conduct That Cannot Be Waived
In most cases, you will find that your client signed and understood the waiver, that the waiver used clear unambiguous language, and it is not contrary to California law. (See generally, Hulsey v. Elsinore Parachute Center (4th Dist., 1985) 168 Cal. App. 3d 333, 337.) Even so, there still may be a viable cause of action.
A waiver is only enforceable as to or- dinary negligence, and only then if the defendant complied with all applicable laws and regulations, did not act intention- ally, or the waiver is not contrary to public policy. Civil Code Section 1668 and City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, are the go-to sources for the law governing waivers in the skydiving and recreational sports context.
1. Civil Code § 1668
All contracts which have for their ob- ject, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.
(Civ. Code, § 1668.)
Section 1668 specifically invalidates waivers as to 1) fraud, 2) willful injury, and 3) “violations of the law, whether willful or negligent.” These exceptions to enforcing a waiver are NOT exclusive, and courts are free to invalidate a waiver “on public policy grounds other than those set forth in section 1668.” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 763.)
Fraud and willful injury are a clear exception to enforcing a waiver. They are usually obvious on the face of the waiver and are not discussed in this article.
The last exception enumerated in Sec- tion 1668 pertains to “violations of the law.” The violations can either be “willful or negligent.”
Remember, the USPA basic safety rules are purely voluntary. That means they have no force of law, and any violations of the USPA SIM would ordinarily not constitute a violation of law. However, do not end the investigation there.
Every drop zone operator must have an airport to operate from. The airport is most likely operated by local city or county agencies. You can request the operating agreement from the airport authority as a public record. The operating agreement usually requires the drop zone operator to follow all USPA safety rules, FAA rules and regulations, and may perhaps include even more stringent safety rules. The city or county governing boards or commis- sions will likely have approved the drop zone operating agreement by majority vote. Thus, the USPA SIM basic safety rules arguably acquire the force of law when the drop zone operator agrees to follow those rules as part of its use of the local airport for its operations.
The USPA SIM is over 200 pages, and is full of safety rules that apply to almost every conceivable parachuting possibility. Go through the USPA SIM and identify every potential rule violation. Each rule violation should be specifically pled with facts in the complaint. By laying out the rule violations in the complaint, you are laying the groundwork to prevent dis- missal of the claims down the road.
Part 61, 65 and 91 of the FAA regula- tions govern certain aspects of parachuting activities, primarily the flight operations and the packing of the parachute itself. Any violations of any of these regulations can be used to bolster your claim that the injuries were caused by violations of the law, and are thus not barred by the waiver.
FAR Part 61 focuses on pilot certifica- tion. Make sure the pilot and crew are property FAA certified.
FAR Part 65 focuses on certification and qualifications of the parachute rigger, and the record-keeping requirements relat- ing to the parachutes. In one case I was involved in, the parachute did not have the parachute rigger seal required by Sec- tion 65.133. Such a simple violation can be instrumental in overcoming a waiver. Other violations of Part 65 might include not properly logging parachute packing (Section 65.131), not having a certified parachute rigger pack the parachute (Sec- tion 65.119), or not having the right facili- ties or equipment available to perform the parachute packing (Section 65.127).
Do not dismiss a skydiver’s claim for damages just because they signed a waiver, or engaged in a dangerous sport.
Part 91 focuses on the operation of the aircraft, and in some cases, the parachut- ing operations. The pilot in command of the aircraft transporting the skydivers is responsible for all injuries resulting from the operation of the aircraft in a “careless or reckless manner” (Section 91.13). This is a catch-all regulation that can be used to claim that even regular negligence on the part of the aircraft operator or in the aircraft operations, is actionable. In other words, operating the aircraft in a “care- less or reckless manner” is a violation of Section 91.13, and a violation of the law. As a violation of the law, a waiver is not enforceable as to those actions pursuant to Civil Code § 1668. Perhaps the pilot chose the wrong location to drop, perhaps the weather was not safe to fly, or any number of things the pilot could have done to help prevent the incident.
One of the selling points many drop zones use is that they drop skydivers from altitudes of 18,000 feet or more. However, the FAA recognizes that even a brief time in altitudes above 12,500 feet results in hypoxia, or lack of oxygen. Hypoxia re- sults in confusion, loss of cognitive abil- ity, and loss of consciousness. Hypoxic conditions are so dangerous because even experienced pilots have a hard time recognizing their own symptoms and make mistakes that a person operating un- der normal oxygen conditions would not make. To help remedy hypoxia, Section
91.211 of the FAA regulations requires that each occupant of an aircraft flying over an altitude of 15,000 feet be provided with supplemental oxygen. I have found that none of the drop zones that advertise drops from 18,000 feet offer oxygen to its skydivers.
Most drop zones completely ignore the supplemental oxygen rules. They justify their refusal to supply oxygen on their belief that brief exposure to high altitudes will not cause hypoxia. They are wrong, hypoxia and the resulting confusion leads to poor decision-making, and the inabil- ity to recognize and react to a rapidly developing dangerous situation. Hypoxia confusion likely plays at least some role in almost every parachute accident.
Another source of rules and regulations can be the equipment operating manual itself. The parachute operating manual will contain explicit direction and rules relating to maintenance and repairs of the parachutes and rigs. The drop zone may have been required through the operating agreement with the airport authority from which it operates to follow all parachute operating manual directions, which, argu- ably, give the manual the force of law.
By using the above analysis, you will find almost every skydiving accident re- sults from some safety violations. The key is to identify every potential rule, regula- tion or recommendation that was violated or ignored and specify those violations in the complaint.
2. Gross Negligence
In City of Santa Barbara, the California Supreme Court held “we conclude that public policy generally precludes enforce- ment of an agreement that would remove an obligation to adhere to even a minimal standard of care.” (City of Santa Barbara v. Superior Court, supra, 41 Cal.4th at 777.) “We find that … [agreements releasing liability for future gross negligence] are generally void on the ground that public policy precludes enforcement of a release that would shelter aggravated miscon- duct.” (Id. at 760.)
Gross negligence is usually an issue of fact for the jury to decide, but not always.
(Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640; Kabo-goza v. Blue Water Boating, Inc. (E.D. Cal., Apr. 8, 2019, No. 218CV02722JAMKJN) 2019 WL 1517577, at *3.)
“Evidence of conduct that evinces an extreme departure from manufacturer’s safety directions or an industry standard also could demonstrate gross negligence. Conversely, conduct demonstrating the failure to guard against, or warn of, a dan- gerous condition typically does not rise to the level of gross negligence.” (Anderson Fitness Internat., LLC (2016) 4 Cal. App.5th 867, 881.)
It is important to go through the USPA SIM, the parachute manufacturer’s oper- ating manual, the applicable FAA regula- tions and any other potentially applicable safety recommendations relating to sky- diving and plead them explicitly in the complaint. This will go a long way to edu- cating and convincing the court that your case has merit, and helps avoid dismissal prior to a jury trial.
3. Primary Assumption of the Risk
“Although California law recognizes as- sumption of risk as a bar to recovery under some circumstances, it does not allow a party to release itself from liability for gross negligence.” (City of Santa Bar- bara v. Super. Ct., supra, 41 Cal.4th at 779.) The defense will raise primary assumption of the risk as an affirmative defense. The purpose of this article is not to examine primary assumption of risk doctrine, but I will point out that primary assumption of risk only applies to risks generally associated with the type of activity the person undertakes. All the rules violations discussed throughout this article can be used to argue that no one assumes the risk for violations of the law.
You can read the full article @ Consumer Attorneys of California HERE!
CONTACT A SKYDIVING INJURY ATTORNEY FOR HELP
Do not dismiss a skydiver’s claim for damages just because they signed a waiver, or engaged in a dangerous sport. There are often legally viable claims that can be made against the drop zones that will help compensate the wrongfully injured for their injuries and help prevent future injuries by encouraging drop zones to adopt and enforce more stringent safety rules.
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