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Dailey v. Sports World South9/30/2003
any bodily injury or wrongful death caused by his participation in the class or negligence by the instructors. Thus, by the plain language of the release, Tabriz released respondents from liability for any alleged negligent instruction. See Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 67 (Minn. 1979) (stating that language in a contract is given its plain and ordinary meaning).
The Malecha court addressed an argument similar to the one raised by appellant here. The plaintiff in Malecha argued that the skydiving club's alleged failure to properly pack his parachute was not within the scope of the exculpatory agreement. Malecha, 392 N.W.2d at 731. The court concluded, however, that the broad definition of potential negligence in the exculpatory clause encompassed the type of accident that occurred. Id. The court also stated that the parachute was an integral part of skydiving and therefore, " here would be no rational basis upon which to exclude from the scope of the exculpatory agreement negligence resulting in a malfunction of the parachute." Id.
We conclude that a similar analysis applies here. Receiving instruction from teachers is an integral part of a scuba-diving class and therefore, it would not be rational to exclude negligent instruction from the scope of this release.
3. Public Policy
Schlobohm also requires courts to determine whether an exculpatory clause violates public policy. 326 N.W.2d at 923. Before enforcing an exculpatory clause, both prongs of the test must be examined. Id. They are: (1) whether there was a disparity in bargaining power between the parties; and (2) whether the type of services being provided are public or essential. Id.
According to Schlobohm, a disparity of bargaining power exists when an adhesion contract is drafted unilaterally by a business and forced on an unwilling and unknowing public "for services that cannot readily be obtained elsewhere." Id. at 924 (citations omitted). Generally, it is a contract not bargained for but imposed on the public for a necessary service on a "take it or leave it" basis. Id. Moreover, " here must be a showing that the parties were greatly disparate in bargaining power, that there was no opportunity for negotiation and that the services could not be obtained elsewhere." Id. (citations omitted) (emphasis in original).
In Schlobohm, the supreme court determined that there was not a disparity in bargaining power because the plaintiff voluntarily applied for membership at the health club, and there was no showing that the services were necessary or that they could not have been obtained elsewhere. Id. at 925.
Here, Tabriz voluntarily signed up for the scuba-diving class, and there was no showing that the services were necessary or that they could not have been obtained elsewhere. Tabriz had his choice of several other scuba-diving facilities in the area. Moreover, Tabriz was not compelled to scuba dive and had the choice to forego the activity altogether. See Malecha, 392 N.W.2d at 730.
In addition, although appellant concedes that scuba diving is not an essential public service, he argues that scuba diving implicates the public interest and therefore, suggests that the standard set forth in Schlobohm be extended to encompass not only essential services, but services that affect the public interest. But appellant offers no support for his position other than policy arguments and foreign caselaw. And the majority of the Minnesota Supreme Court in Schlobohm rejected that argument and concluded that recreational activities are not essential public services. Id. at 925-26.
II.
Finally, appellant argues that even i
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