Opinion
No. 77-070
Decided March 16, 1978. Rehearing denied April 13, 1978. Certiorari granted August 14, 1978.
In negligence action to recover for injuries sustained in airplane crash, trial court entered summary judgment for defendant and plaintiff appealed. When he entered the contract is without significance as to its subsequent enforceability against him.
Affirmed
1. CONTRACTS — Minor — Voidable — Affirmance — Matter of Intent — Determined — Accepts Benefits — Silence — Acquiescence — Considerable Time — — After Age Eighteen. A contract entered by a minor is not void, but only voidable by the minor, and affirmance of the contract is not merely a matter of intent; it may be determined by the actions of a minor who accepts the benefits of a contract after reaching the age of eighteen, or by his silence or acquiescence in the contract for a considerable length of time after reaching his majority.
2. Entered by Plaintiff — At Age Seventeen — Not Disaffirm — After Eighteen — Ratified Contract — Accepted Its Benefits — Exculpatory Provision — Enforceable. Although contract that contained provision absolving corporate defendant of liability for its negligence was entered by negligence action plaintiff when he was seventeen, the undisputed evidence showed that after turning eighteen, plaintiff not only did not disaffirm the contract, but instead ratified it by accepting the benefits thereof, and thus, the fact that he was a minor when he entered the contract was without significance as to its enforceability against him.
3. No Allegations — Fraud, Coercion, Imposition — No Great Disparity — Bargaining Power — Services — Obtainable Elsewhere — Not Adhesion Contract — — Plaintiff — Not Relieved of Bargain. Where, relative to contract under which defendant was to provide plaintiff with its parachute jumping facilities, plaintiff alleged no fraud, coercion, or imposition, and where the facts did not establish a great disparity of bargaining power, or that the services could not be obtained elsewhere, the contract, although favorable to defendant, was not void as an adhesion contract, and plaintiff could not be relieved of the consequences of his bargaining on such basis.
4. Promise — One Party — Consideration — Promise of Other. The promise of one party to a contract is consideration for the promise of the other.
5. Exculpatory Agreements — Simple Negligence — Generally Enforceable — — Applicable — Provide — Parachute Jumping Facilities. In the absence of a duty to the public, exculpatory agreements are valid when fairly made and may be enforceable to preclude recovery for injury caused by simple negligence; thus, trial court properly determined that provision of contract which absolved parachute jumping service from liability for the negligence of it or its employees was enforceable and was not void as contrary to public policy.
6. NEGLIGENCE — Airplane Crash — Airplane Licensed — Federal Aviation Action — No Significance — State Law Predominant. In action to recover for injuries sustained in airplane crash, the fact that the airplane was licensed under the Federal Aviation Act was without significance, state law being predominant in the law of tort.
Appeal from the District Court of the County of Jefferson, Honorable Ronald J. Hardesty, Judge.
L. B. Ullstrom, Edward J. Raw, for plaintiff-appellant.
Weller, Friedrich, Hickisch Hazlitt, Donald Lawrence, Jr., Paul D. Renner, for defendants-appellees, Cecil D. Dressel, Zita A. Dressel, and Flightcraft, Inc.
No appearance for defendants-appellees Robert L. Clark and Free Flight Sport Aviation, Inc.
Plaintiff sued to recover damages for personal injuries suffered in an airplane crash. He alleged that defendants were guilty of negligence and of malicious, oppressive, wilful and wanton misconduct. Defendants moved for a summary judgment of dismissal. The trial court granted the motion as to the negligence claim only, determined there was no just reason for delay, and directed entry of a judgment dismissing the negligence claim pursuant to C.R.C.P. 54(b). Plaintiff appeals from that judgment. We affirm.
The facts pertinent to this appeal are not in dispute. Plaintiff, then seventeen years old, entered into a contract with defendant, Free Flight Sport Aviation, Inc., under which Free Flight provided facilities for free-flight, or parachute jumping. Ten months after plaintiff's eighteenth birthday, a plane furnished by Free Flight crashed while carrying plaintiff and others preparatory to a parachute jump, causing injuries to the plaintiff. The other defendants were owners or operators of the plane, acting as agents or employees of Free Flight Sport Aviation, Inc.
In granting the summary judgment the court relied on provisions of the contract, under which plaintiff exempted and released Free Flight, "its owners, officers, agents, servants, employees, and lessers from any and all liability [resulting from negligence and] . . . arising out of any damage, loss or injury to [plaintiff] . . . while upon the . . . aircraft of [Free Flight] or while participating in any of the activities contemplated by this agreement . . . ." The contract also contained a covenant not to sue for such injuries.
Plaintiff contends the trial court erred because the contract is void, and, even if not void, the event was not within the scope of the release.
I.
[1] It is well settled in Colorado that a contract entered into by a minor is not void but only voidable by the minor. Fellows v. Cantrell, 143 Colo. 126, 352 P.2d 289 (1960). Affirmance is not merely a matter of intent; it may be determined by the actions of a minor who accepts the benefits of a contract after reaching the age of majority, or by his silence or acquiescence in the contract for a considerable length of time. Fellows v. Cantrell, supra. Furthermore, § 13-22-101(1), C.R.S. 1973, states that "every person, otherwise competent, shall be deemed to be of full age at the age of eighteen years or older for the following specific purposes: (a) To enter into any legal contractual obligation and to be legally bound thereby to the full extent as any other adult person; . . . ."
[2] Thus, on reaching the age of eighteen plaintiff was required either to disaffirm the contract with a reasonable time, or be bound thereby. See Keser v. Chagnon, 159 Colo. 209, 410 P.2d 637. And, the undisputed facts establish that, after turning eighteen, plaintiff not only did not disaffirm the contract, but instead ratified it by accepting the benefits thereof. Hence, his being a minor when he entered the contract is without significance as to its present enforceability against him.
II.
[3] Plaintiff also argues that the exculpatory provision of the agreement is void because it is an adhesion contract and lacked consideration. In support of this allegation plaintiff states that he would not have been allowed to participate in the parachute jumping activities if he had not signed the contract, and that there was no contemporaneous passing of consideration. However, plaintiff has alleged no fraud, coercion, or imposition, stated in Sedalia Land Co. v. Robinson Brick Tile Co., 28 Colo. App. 550, 475 P.2d 351 (1970), as being necessary to relieve a party to a contract of its consequences. Nor do the facts establish a great disparity of bargaining power, or that the desired services could not be obtained elsewhere, both of which must be present to establish an adhesion contract. See Clinic Masters, Inc. v. District Court, 192 Colo. 120, 556 P.2d 473 (1976). Although the terms of the contract may be favorable to the defendants, it was not essential that plaintiff pursue his interest in sky diving or that he pursue it with a particular air service.
[4] There is no merit to plaintiff's claim that the contract lacked consideration. The promise of one party is consideration for the promise of the other. United Press International v. Sentinel Publishing Co., 166 Colo. 47, 441 P.2d 316 (1968); see Oldis v. Grosse-Rhode, 35 Colo. App. 46, 528 P.2d 944 (1974).
[5] Finally, plaintiff contends the contract is void as being contrary to public policy. This issue, as applied to the facts in this case, was determined in Barker v. Colorado Region-Sports Car Club of America, Inc., 35 Colo. App. 73, 532 P.2d 372 (1975), which held that "Colorado follows the general rule that, in the absence of a duty to the public, exculpatory agreements are valid when fairly made and may be enforced to preclude recovery for injury caused by simple negligence." Thus, the trial court's determination was proper.
III.
Likewise, we find no merit in plaintiff's agreement that the event was not within the scope of the release. The contract specifically covers injury while in an airplane provided by Free Flight, and the use of an airplane was clearly within the "activities contemplated" by the agreement. The agreement is express and unequivocal, and is binding on the parties. See Threadgill v. Peabody Coal Co., 34 Colo. App. 203, 526 P.2d 676 (1974).
IV.
[6] The fact that the airplane was licensed under regulations promulgated under the Federal Aviation Act of 1958 (49 U.S.C. § 1301 et seq.) is not significant here, since state law "has predominated the law of tort." Rosdail v. Western Aviation, Inc., 297 F. Supp. 681 (D. Colo. 1969).
Judgment affirmed.
JUDGE COYTE and JUDGE PIERCE concur.