Winkler v. Win Win Aviation, Inc.

339 F. Supp. 3d 772
CourtDistrict Court, S.D. Ohio
DecidedSeptember 10, 2018
DocketCase No. 2:16-cv-629
StatusPublished
Cited by1 cases

This text of 339 F. Supp. 3d 772 (Winkler v. Win Win Aviation, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Winkler v. Win Win Aviation, Inc., 339 F. Supp. 3d 772 (S.D. Ohio 2018).

Opinion

ALGENON L. MARBLEY, UNITED STATES DISTRICT JUDGE

*774This matter is before the Court on Defendants Win Win Aviation and Vincent LeMay's Motion for Summary Judgment (ECF No. 31). For the reasons set forth below, the Court GRANTS Defendants' Motion.

I. BACKGROUND

A. Factual Background

Plaintiff Rebecca Winkler is the mother of Ms. Sarah Rhoads and the administrator of her estate. (ECF No. 30 at 7, 49). Ms. Rhoads was an employee of Start Skydiving LLC ("Start Skydiving"), a sky diving business that operates out of the Middletown Regional Airport in Middletown, Ohio. (ECF No. 28 at 5, 8). Start Skydiving serves a variety of customers, including individuals looking to skydive for the first time in tandem, licensed skydivers who come to Start Skydiving to skydive alone, and accelerated free-fall students who are in the process of learning to skydive on their own. (Id. at 17).

1. Start Skydiving's Business Operations

Approximately twenty to twenty-two employees work at Start Skydiving on an average day. (Id. at 33). About ten to fifteen of the employees are skydiving instructors. (Id. ). Two of the employees are line personnel, who are responsible for fueling the aircraft and loading the skydivers onto the plane. (Id. ). The line operators wear yellow vests and hearing and eye protection. (Id. at 57). Line operators are typically the only individuals permitted on the ramp or in the tarmac area, which is denoted by a red line that is meant to signify to individuals not to proceed without authorization. (Id. at 28-30). In order to have authorization to enter the tarmac, employees at Start Skydiving must go through a seven-day training that the principal owner of Start Skydiving, Mr. John Hart, described as "pretty extensive" and "quality." (Id. at 29-30). During training, employees learn about propeller safety and the risks associated with moving aircrafts and propellers. (Id. ). Employees are trained not to approach an airplane that has a moving propeller from the front. (Id. at 59).

In addition to the line personnel and the skydiving instructors employed on an average day, Start Skydiving usually employs approximately four people to work in the manifest office, which is the greeting area where skydivers first go upon arrival. (Id. at 25, 33). After the skydivers arrive, they fill out a liability waiver, which must be signed before an individual can pass the yellow line that denotes the start of the loading area, where passengers wait to be loaded on the next flight. (Id. at 22, 26, 52). Employees are also required to sign the waiver in order to go past the yellow line. (Id. at 22; ECF No. 31-3). The waiver includes an "Assumption of Risk" section that states, in relevant part:

I know and understand the scope, nature, and extent of the risks involved in the activities covered by this Agreement. I understand that these risks include, but are not limited to: ... improper and/or negligent operation and/or use of the equipment; aircraft malfunction and/or negligent aircraft operation; careless and/or negligent instruction and/or supervision. I voluntarily, freely and expressly choose to incur all risks associated with the activities covered by this Agreement, understanding that those risks may include personal injury, damage to property, and/or death.

(ECF No. 31-3 at ¶ 1). The waiver agreement also includes an "Exemption and Release *775from Liability" section that purports to release "Start Skydiving, LLC; all aircraft owners, and pilots with whom it contracts for flying services," among others, from "any and all liability claims, demands or actions or causes of action whatsoever arising out of damage, loss or injury to me or my property, or my death, while upon the premise or aircraft or while participating in any of the activities covered by this Agreement, whether resulting from the negligence and/or other fault, either active or passive, of any of Releases, or from any other cause." (Id. at ¶ 2). Once the skydivers sign the waiver agreement, they are permitted to cross the yellow line into the loading area when it is the appropriate time for their group to do so. (ECF No. 28 at 26). The passengers are then allowed to cross the red line into the tarmac area to get loaded onto the plane only when the plane is pulled up at a complete stop and the line personnel bring the passengers forward. (Id. at 28-29).

On a typical business day, Start Skydiving completes approximately sixty "loads," meaning the plane takes off, a group of passengers jump out of the plane, and the plane lands about sixty times in one day. (Id. at 35). Each load cycle takes approximately twenty to thirty minutes to complete: a couple of minutes to load passengers, about thirteen minutes to climb to altitude, and eight minutes to descend.1 (Id. at 36). To get as many loads in as efficiently as possible, Start Skydiving does not typically shut down the engines of the planes between loads. (Id. at 37). Mr. Hart, testified that the "planes will run from when we start until we shut down the last load of the day" because after a plane is shut down, the cool down period is fifteen to twenty minutes (depending on the outside temperature) and it is cheaper for the planes to continue to run than to shut them down for twenty minutes. (Id. at 5, 37-38). Mr. Hart further testified that keeping the planes running, rather than shutting them down, is "an encouraged practice." (Id. at 38).

Start Skydiving owns three of the aircrafts that it uses for its skydiving operation, and occasionally utilizes other aircrafts that it does not own. (Id. at 6). One company that Start Skydiving obtains other aircrafts from is Defendant Win Win Aviation, Inc. ("Win Aviation"). (Id. ). Start Skydiving and Win Aviation have had a business relationship for at least as long as Start Skydiving has been located at Middletown Airport, which was seven years as of Mr. Hart's deposition in April of 2017. (Id. at 5-6). Win Aviation had a "wet lease agreement," with Start Skydiving, which means that when Win Aviation provided a plane for Start Skydiving, it also provided the pilot and the insurance, and the only thing Start Skydiving provided was the fuel. (ECF No. 37 at 26). Thus, every time Start Skydiving used an aircraft from Win Aviation, the plane always came with a pilot. (ECF No. 28 at 7). When Start Skydiving needed to utilize an aircraft from Win Aviation, it would typically ask for a Tailgate, which is a rear-exit aircraft. (Id. at 19). Start Skydiving typically used single-propeller aircrafts in their operations, but sometimes they would get a twin propeller plane-a plane with a propeller on each side, rather than just one in the front-from Win Aviation. (Id. at 19, 72). Start Skydiving uses dual-engine planes approximately four times a year. (Id. at 72).

2. June 1, 2014 Incident

On June 1, 2014, Ms. Rhoads was working in the front office at Start Skydiving. Ms. Rhoads began working at Start Skydiving *776

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339 F. Supp. 3d 772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winkler-v-win-win-aviation-inc-ohsd-2018.