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Dare v. Freefall Adventures3/21/2002
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 4, 2002
Plaintiff Joseph Dare was injured in a skydiving accident when he attempted to avoid colliding with defendant Eric Keith Johnson, a co-participant in the jump.
Prior to the jump, plaintiff signed a release/waiver agreement with the operator of the skydiving facility, defendant Freefall Adventures, Inc. (Freefall), under which plaintiff released Freefall from any claims for injuries arising from Freefall's negligence. The agreement further provided that, in the event plaintiff instituted a suit against Freefall, plaintiff agreed to pay Freefall's counsel fees incurred in defending the suit. The trial court granted summary judgment in favor of all defendants dismissing plaintiffs' personal injury action. The court concluded that plaintiffs failed to establish a prima facie case of negligence. It also dismissed Freefall's counterclaim in which it demanded counsel fees in accordance with the release/waiver agreement, as well as the Frivolous Claims Statute, N.J.S.A. 2A:15-59.1, and Rule 1:4-8.
We conclude that the recklessness standard applied to Johnson and the ordinary negligence standard applied to Freefall, and, based on the evidentiary material submitted, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995), summary judgment was properly granted to all defendants. We further hold that the fee-shifting provision under the release/waiver agreement signed by plaintiff is void as against public policy, and that Freefall is not entitled to counsel fees under the Frivolous Claims Statute. We therefore affirm dismissal of Freefall's counterclaim.
Considering the evidentiary material in a light most favorable to plaintiffs, id. at 523, these are the facts. On July 9, 1995, plaintiff Joseph Dare, a licensed and experienced skydiver, having jumped on 137 prior occasions, utilized the skydiving facilities operated by Freefall in Williamstown, Gloucester County. Plaintiff had been using the Freefall facility for over two years and nearly every week for the six months preceding his accident.
Prior to his jump on July 9, 1995, plaintiff executed a five-page "Waiver of Rights, Release and Indemnity Agreement" which defined the risks of injury or death associated with skydiving. Page 3 of the waiver provided:
1. I hereby RELEASE AND DISCHARGE . . . FREEFALL . . . from any and all liability, claims, demands or causes of action that I may hereinafter have for injuries and damages arising out of my participation in parachuting activities.
2. I further agree that I WILL NOT SUE OR MAKE CLAIM against [Freefall] for damages or other losses sustained as a result of my participation in parachuting activities . . . . I also agree to INDEMNIFY AND HOLD [Freefall] HARMLESS from all claims, judgments and costs, including attorneys' fees, incurred in connection with any action brought as a result of my participation in parachuting activities . . . .
Page 4 provided:
2. EXEMPTION FROM LIABILITY. [Plaintiff] . . . releases [Freefall] . . . from any and all liability . . . arising out of any . . . injury to [plaintiff] . . . while participating in any of the activities contemplated by this AGREEMENT . . . whether such . . . injury results from the negligence of [Freefall] . . . .
3. COVENANT NOT TO SUE. [Plaintiff] agrees never to institute any suit or action at law or otherwise against [Freefall], its owners, officers, agents, employees, servants, or lessors . . . by reason of injury to [plaintiff] . . . arising from the activities contemplated by this AGREEMENT . . . . [Emphasis added.]
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