Decision in man's case against Mission Soaring over hang gliding accident reversed by appellate court

By Karen Kidd | Jan 14, 2019

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SAN JOSE – A man's lawsuit against a Milpitas hang gliding company following his injury during a hang gliding crash in 2013 is headed back to a San Benito County court following a state appeals court decision.

"On appeal, plaintiff contends that the trial court erred in granting summary judgment," a California's 6th District Court of Appeal three-judge panel said in its 12-page opinion issued Jan. 4. "We agree that triable issues of material fact remain unresolved and that plaintiff successfully rebutted defendants' assertion of express and primary assumption of risk."

The Appeals Court reversed an earlier San Benito County Superior Court's ruling that awarded the defendants summary judgment in the case based on a waiver the injured man, plaintiff Scott Howard, signed prior to the November 2013 crash at Mission Soaring. Mission Soaring is a hang gliding company headquartered on Wrigley Way in Milpitas.

Appeals Court Justice Nathan D. Mihara wrote the opinion in which Justice Franklin D. Elia and Justice Patricia Bamattre-Manoukian concurred.

Howard was injured during a tow at Mission Soaring in November 2013 when the release pin of the hang glider he was in, attached to a cable operated by a hydraulic winch system, failed to release, according to the background portion of the opinion. Howard alleged he attempted several times to release himself for a glide but the hang glider remained attached to the tow cable.

"The auto release mechanism did not release plaintiff because it had been disengaged," the opinion said. "Plaintiff crashed to the ground, resulting in serious injuries."

In May 2015, Howard sued Mission Soaring, owner Patrick Denevan and instructor Harold Johnson, alleging he had been owed a reasonable duty of care in equipment maintenance and in selecting, hiring and supervising of the hang gliding company's employees.

The Superior Court granted a defense motion for summary judgment based on Mission Soaring's argument that Howard's suit is barred based on the express assumption of risk and primary assumption of risk doctrines. Those doctrines are part of the release, waiver and assumption of risk agreement Howard had signed prior to the crash, the defendants argued.

The agreement read in part, "I voluntarily assume all risks, known and unknown, or sports injuries, however cause even if cause in whole or in part by the action, inaction or negligence (whether passive or active) of the released parties to the extent allowed by law."

The defendants claimed that Howard understood and signed the agreement, releasing Mission Soaring from any claim, including for negligence.

"In addition, with respect to primary assumption of risk, defendants argued that the sport of hang gliding includes inherent risks and that plaintiff's injuries resulted from those inherent risks," the opinion said. "At most, defendants argued, they had a limited duty not to increase the risks inherent in the sport. Defendants contended there was no evidence they had breached that limited duty."

The Appeals Court ruled that a jury could reasonably find, based on Denevan's deposition testimony, that the auto release should not have been disengaged and that instruction provided to Howard didn't meet that standard. 

The Appeals Court also ruled that "the instructed use of the auto release was an extreme departure from the ordinary standard of conduct, as expressed in Denevan's deposition testimony."

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