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Edward Venard v. Jackson Hole Paragliding

January 17, 2013

EDWARD VENARD, APPELLANT (PLAINTIFF),
v.
JACKSON HOLE PARAGLIDING, LLC, A WYOMING LLC, TOM BARTLETT, SCOTT HARRIS, MATT COMBS, JON HUNT, ANDREW FRYE, AND JEFF COULTER, APPELLEES (DEFENDANTS).



Appeal from the District Court of Teton County The Honorable Timothy C. Day, Judge

The opinion of the court was delivered by: Burke, Justice.

Before KITE, C.J., and GOLDEN,*fn1 HILL, VOIGT, and BURKE, JJ.

BURKE, J., delivers the opinion of the Court; VOIGT, J., files a dissenting opinion.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] Appellant, Edward Venard, filed suit against Appellees in Wyoming district court to recover damages for personal injuries sustained during a paragliding lesson. Appellees filed a motion to dismiss seeking to enforce a forum selection clause contained in a "Release, Waiver and Assumption of Risk Agreement" that Mr. Venard had signed as a condition of his membership with the United States Hang Gliding and Paragliding Association (USHPA). Several of the Appellees had signed similar agreements with USHPA, but none of the Appellees was a party to the agreement between Mr. Venard and USHPA. Based upon the forum selection clause, Appellees contended that California was the appropriate forum for litigation of the dispute. The district court agreed and granted the motion to dismiss. Mr. Venard challenges that decision in this appeal. We reverse.

ISSUE

[¶2] Did the district court abuse its discretion by granting Appellees' Motion to Dismiss based on a forum selection clause in the Release, Waiver and Assumption of Risk Agreement signed by Mr. Venard?

FACTS

[¶3] In August of 2008, Mr. Venard attended a paragliding training clinic at the Palisades Reservoir near Alpine, Wyoming, offered by Appellee, Jackson Hole Paragliding, LLC (JHP). During the clinic, Mr. Venard was towed in the air by a cable attached to a boat. He was thirty-five feet in the air when the operation failed and he fell to the ground, suffering severe injuries. The individual Appellees were involved in the training session as employees, owners, or agents of JHP.

[¶4] At the time of the incident, Mr. Venard was a member of USHPA.*fn2 He had joined USHPA in July, 2008. In addition to joining USHPA, Mr. Venard also sought a Flight Proficiency Rating to assess his skill level. As a condition of obtaining both membership in USHPA and a Flight Proficiency Rating, USHPA requires that applicants sign a "Release, Waiver and Assumption of Risk Agreement." The agreement between Mr. Venard and USHPA provides, in relevant part, as follows:

In consideration of the benefits to be derived from membership in the USHGA, Ed Venard (Pilot) and the parent or legal guardian of Pilot if Pilot is a minor, for themselves, their personal representatives, heirs, executors, next of kin, spouses, minor children and assigns, do agree as follows:

A. DEFINITIONS . . .

3. "RELEASED PARTIES" means the following, including their owners, officers, directors, agents, spouses, employees, officials (elected or otherwise), members, independent contractors, sub-contractors, lessors and lessees:

a) The United States Hang Gliding Association, a California Non-profit Corporation (USHGA);

f) All persons involved, in any manner, in the sports of hang gliding and/or paragliding at the site(s) where Pilot PARTICIPATES IN THE SPORT. "All persons involved" includes, but is not limited to, spectators, hang glider and/or paraglider pilots, powered ultralight pilots, assistants, drivers, instructors, observers, and owners of hang gliding and/or paragliding equipment; . . .

B. I FOREVER RELEASE AND DISCHARGE the RELEASED PARTIES from any and all liabilities, claims, demands, or causes of action that I may hereafter have for SPORTS INJURIES, however caused, even if caused by the negligence (whether active or passive) of any of the RELEASED PARTIES, to the fullest extent allowed by law.

C. I WILL NOT SUE OR MAKE A CLAIM against any of the RELEASED PARTIES for loss or damage on account of SPORTS INJURIES. . . .

D. I AGREE THAT this AGREEMENT shall be governed by and construed in accordance with the laws of the State of California. All disputes and matters whatsoever arising under, in connection with or incident to this Agreement shall be litigated, if at all, in and before a Court located in the State of ...


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