Header graphic for print
New York Injury Cases Blog News & Updates on Pain & Suffering Verdicts & Settlements

Thrill Seeking Skydiver’s Parachute Fails to Open, Instructor Saves Her, She Sues for Two Broken Fingers

Posted in Assumption of the Risk

You can’t make this stuff up. On July 12, 2003, Lisa Nutley sought to celebrate her birthday with the thrill of her life – a recreational parachute jump. So, she drove to SkyDive the Ranch (web site here), a skydiving facility in Gardiner, New York that’s been in business for over 30 years.

As this was Lisa’s first ever jump, it was to be a tandem jump – an instructor would be tethered to her.

Here are some happy tandem jumpers (this is not Ms. Nutley):

 

Lisa met with the instructor at SkyDive’s facility and was shown a half-hour instructional video. And, before the jump, she signed waivers and releases agreeing that SkyDive would incur no liability for any injuries she might sustain during the course of her jump.

Off she went to celebrate her 33rd birthday. Lisa jumped out of the plane with Robin Rohemo, her tandem partner, and that’s when it got really thrilling – the main parachute failed to deploy and Lisa hurtled toward the ground, somersaulting in the air, terrified of imminent and certain death when she’d smash into the round at 100 miles per hour.

Here’s what it looks like when a chute gets tangled:

Luckily for Lisa, Mr. Rohemo knew exactly what to do during this mid-air free fall. First, he tried to cut the failed main chute off. Failing that, he told Lisa he needed her to stand on his knees and hold on. Lisa’s words: "So I am holding as tight as I possibly could standing on his knees as we are falling to our death and I just felt this tremendous pressure pull on my hand … and I figured we were going to die …." Rohemo was able to free up the back-up chute, he and Lisa floated down to safety and no one died that day.

Whew, what a thrill. Maybe Lisa should’ve paid extra for the additional thrill. Instead, because her third and fourth fingers were fractured during the fall, she lawyered up and sued SkyDive claiming that Rohemo – her savior – had wrongfully told her to hold tight to a dangerous area of the parachute he was trying to cut away and then never told her to let go at an appropriate time. This, she and her lawyer claimed, presented Lisa with an enhanced risk not assumed or inherent in a tandem jump.

Baloney, said the defense. In moving for summary judgment (seeking to have the lawsuit thrown out before trial), SkyDive argued that Lisa was fully aware of all of the risks associated with skydiving and thus all her claims were barred. Under New York law, a person who voluntarily participates in recreational activity is deemed to consent to the apparent or reasonably foreseeable consequences of that activity. What’s more obvious than the risk of the chute not opening? That’s any novice’s first (and worst) fear when contemplating a skydive.

And then there are three waivers that Lisa signed specifically acknowledging that she understood the risks of injury or death and agreeing that she would not sue. Here is the waiver right on SkyDive’s web site.

It’s beyond me how in the world anyone would, under these circumstances, have the gumption to sue for two fractured fingers (one of which required surgery to repair). After three years of litigation, an appellate court this week finally tossed this case out, granting the defendant summary judgment dismissing the complaint (overruling a lower court judge’s decision earlier this year allowing the case to proceed to trial).

The appeals court found that SkyDive should win because Nutley had assumed the risk of injury in that she:

  • knew she was engaged in an inherently dangerous recreational activity and
  • knew of the obvious risk that the main chute could fail to open

So that’s the end of this case, right? Wrong. The waivers that Nutley signed included language that, in a lawsuit such as the one Nutley started here, she’d have to pay SkyDive’s attorneys fees and litigation costs. While this type of contractual provision is generally disfavored in New York, Nutley failed to defend against it (her lawyer neglected to serve a so called reply to defendant’s counterclaim asserting its right to legal fees and costs) so this issue is still alive.

Inside Information:

  • SkyDive offered $5,000 to settle several times
  • SkyDive intends to pursue its claim for legal fees and costs which by my estimate could exceed $50,000

This is a lawsuit that never should have been started. Lisa Nutley knew there was a risk that her chute might not open. When her worst fear happened, she was saved by her tandem diver. Suing for her two fractured fingers was not only ungracious but also it was contrary to settled legal principles. It was a lawsuit destined to be dismissed. Lisa should now pay SkyDive’s legal fees and costs. And it appears that she will.

 

  • Eric T

    Fault for bringing this suit lies not with Nutley, but with her attorney. The potential client isn’t really expected to know the intricasies of the law. But the lawyer is.
    I don’t fault Nutley for asking about a lawsuit — her physical injuires no doubt paled by comparison to the emotional trauma. But this client never should have made it in the layer’s door. A 3 minute phone call inquiry should have been the end of it.

  • John M. Hochfelder, Esq.

    My colleague, Eric Turkewitz, points out that we lawyers need to screen out cases like this. That’s true and we do. It appears, though, that this woman (Ms. Nutley) was well educated and should have known that she was pursuing a flimsy lawsuit: she voluntarily sought death defying thrills, she signed away her right to sue and she avoided death only because her instructor saved her. And then she sues for two broken fingers?

  • S. Fall

    I partially agree the lawyer is responsible for going forward with the lawsuit. But who contacted who in the first place?
    I wish the standard was loser pays in lawsuits, I think it would help prevent more cases like this from ever proceeding. Especially if losing counsel had to pay opposing counsel and then collect back from the client. :)

  • Robert

    Eric T, most lawyers would not have turned this away, and I would be willing to bet you know it. If her chosen lawyer hadn’t taken the case, another surely would have. Fault lies solely with Nutley for being an ungrateful…person to the man whose clear head under pressure saved her sorry life.

  • http://www.NewYoirkInjuryCasesBlog.com John M. Hochfelder, Esq.

    I agree with Robert to an extent. Most good and successful lawyers, like Eric is, would indeed have turned this case down. I know I would have.

  • Eric T.

    John:
    I don’t really think she was suing over the two fingers so much as the emotional distress. I think it is safe to say that a near-death experience like this could easily have a very profound effect on someone. I would not be at all surprised if she suffered from PTSD, waking up with nightmares, having difficulty concentrating or eating and reliving the event numerous times per day.
    I cut the plaintiff slack for that reason. That the phone call to the lawyer is likely driven by emotion and not analysis.
    But the lawyer should know better.

  • David Schwartz

    If her lawyer advised her that she was very unlikely to win and could wind up having to pay the other side’s legal fees, then she’s responsible. She needs to learn to stop assuming risks.
    If her lawyer advised her that she had a reasonable chance of winning and didn’t advise her that she could wind up on the hook for the other side’s legal fees, then her lawyer is responsible. I’m sure she can find another lawyer to help her sue this lawyer.

  • S. Fall

    Eric T.: Don’t you think that a “near death experience” is an assumed risk while skydiving? If she didn’t want to risk that “emotional distress” she shouldn’t have jumped out of the plane.
    David Schwartz: I think you say pretty well on who is responsible.

  • http://blogs.findlaw.com/injured/2009/08/skydiver-almost-dies-then-sues-over-broken-fingers.html Injured

    Skydiver Almost Dies, Then Sues Over Broken Fingers

    A New York appellate court last week ended a lawsuit by a woman who was injured in a skydiving accident several years back. The suit was remarkable for its plaintiff’s apparent lack of perspective: the injured woman sought compensation for…

  • Eric T

    Don’t you think that a “near death experience” is an assumed risk while skydiving? If she didn’t want to risk that “emotional distress” she shouldn’t have jumped out of the plane.
    Yes I do. Which is why I would have rejected the case on the phone. I’m merely offering a logical explanation as to why the call to the lawyer was made. Emotion often clouds judgment for the person in the middle of it all. So I can understand why the call might be made, but not why the case was taken.
    One side note: Hypothetically speaking someone on the ground could have said, “who the hell packed this parachute like this? That’s not the way to do it.” At that point you might make an argument that you are outside the assumed risk of the sport, though I doubt that is what happened.

  • Zuzu

    Several years ago I went skydiving for my first (and only) time. On landing I shattered my right ankle, cracked and broke six ribs in all, suffered a compression fracture at L2, and ended up with a severe concussion. Filing a lawsuit never crossed my mind.
    I’m still disappointed, though, that they refused to turn over the recording of the dive that I’d paid for.

  • joseph

    Simply put she contracted many of her rights away to gain entry to the “thrill ride” otherwise she wouldn’t have been able to ride. This was a binding legally recognized contract.
    A ride malfunction occurred and the redundant parachute was released as intended minimizing the effect of the malfunction.
    Very generous of the parajump company.

  • T3ch W01f

    Eric whether or not you believe she was actually suing over two broken fingers or not doesn’t really matter. The law suit said she was, facts are facts.
    She signed waivers denying her right to sue over injury or death, then tried to sue over injury. She might have had a better leg to stand on had she tried to sue over PTSD or the like. Saying that a chute not properly packed, which isn’t always the case, causing the main chute to get tangled and not deploy properly was not an inherent risk and had caused severe emotional trauma would of given her a way around the waivers and been much more likely to succeed.

  • James H-B, OBE, QC

    Aside from the question of whether or not her lawyer acted properly in taking her case, and the larger problem of the way frivolous suits like this thrive in the US justice system, the real issue here for me is this:
    I imagine most people who go skydiving for the first time are seeking the thrill of confronting (and overcoming) the fear of death, pushing their boundaries and thereby learning more about themselves as human beings. Given this woman’s utter lack of decency and gratitude, let alone common sense, after her brush with death – I have to wonder what kind of miserable, selfish horror she was to start with. She should be made to jump with a faulty parachute again – alone.

  • Flem

    I guess it would have been easier to let her fall. She just screwed things up for the people after her, those sure will think twice about saving somebody now.

  • Eric

    “Near death experience” is an “assumed risk”, and there’s a potential for “emotional distress”?! IMO, the whole point of skydiving (at least the first time you do it), it specifically so you DO feel like you have a near death experience and so your emotions get tweaked a bit. Duh!

  • Dave the 17-time Jumper

    “Saying that a chute not properly packed, which isn’t always the case, causing the main chute to get tangled and not deploy properly was not an inherent risk and had caused severe emotional trauma would of given her a way around the waivers and been much more likely to succeed.”
    Wrong, and YOU STATE SO! An improperly-packed chute is ONE of the inherent risks, as YOU pointed out (“…isn’t always the case…”)! D’Oh!
    No, we can safely assume that emotional trauma will ALWAYS be a component of any PHYSICAL injury (unless you’re a masochist), so you can’t go there.
    She might have gotten as far as several appointments with the lawyer(s), but, IMHO, they’re BOTH liable for the costs. The lawyer(s) knew the waivers were solid, yet pursued the case, likely hoping for a quick $5K settlement or something like that. Didn’t happen, so they BOTH should pay. She pays the jump zone’s lawyers, and the lawyer(s) pays into a fund to help others facing such frivolous suits pay the bills.
    [Had to quit jumping due to a bad back]

  • Oblivion

    “No good deed goes unpunished”.

  • Bam

    She (and her lawyer) is exactly what’s wrong with this country. The instructor should have cut her free with the malfunctioning main chute…

  • Sean

    Shes still a huge whimp, I’d be ravishing that guy if he just saved my life like that, i’d make babies with him hahaha

  • Eric T

    Eric whether or not you believe she was actually suing over two broken fingers or not doesn’t really matter. The law suit said she was, facts are facts.
    The fingers would have been only one part of the injuries. Personal injury suits are for both pain (physical) and suffering (mental anguish). This case, since it proceeded through discovery, would have had a “Bill of Particulars” that outlines all the injuries, not just the one that is in the headline here. The chance of emotional damage/stress not being in the BP is somewhere around zero.

  • John Metcalf

    Perhaps the instructor should have cut her loose and let her fall to her death.

  • nanibold

    “Fault for bringing this suit lies not with Nutley, but with her attorney. The potential client isn’t really expected to know the intricasies of the law. But the lawyer is.”
    I understand the point you’re making, and it is true… on a technical level, her lawyer should have known better. However, fault for bringing the suit ultimately lies with Nutley because she’s the one who was childish and unethical enough to feel like she deserved compensation. It’s skydiving! It’s dangerous! He saved both your lives that day! Go get your fingers fixed and count your blessings. Retard.

  • http://www.thereheis.com SLEZE

    Shocking. All frivilous lawsuits should be dismissed this way…with the plantiffs footing the bills of the defendants.

  • Haseen

    It’s both her fault and her lawyer’s. IMO, her lawyer should have to pay 1/2 of the cost. IANAL, but couldn’t you prevent a lot of frivolous cases if the lawyers didn’t personally gain from filing them?

  • Jan Schotsmans

    A while back I read an article where a man saved another man from a carwreck.
    The man that was in the carwreck was stuck because his seatbelt wouldn’t disengage (according to the article he was rather overweight and eventhough the safety valves of the seatbelts did pop, he still couldn’t get out because of his massive size) and the car was on fire.
    The hero had a pocket knife with him and cut the seatbelt with that, the man in the wreck got a friction burn from the seatbelt and hit his head against the steering wheel (seems he was applying forward force on the seatbelt and when it released he speared forward).
    The man in the accident got out alive with a bump on his head, a friction burn and some bruises from the crash.
    By the time the emergency services got there, the car was almost completely in flames. If the hero hadn’t helped, the other guy would at least have major burns and might even have died.
    He sued the hero for the bump on his head and the friction burn from the seatbelt. The case went to court and a charge was added that the hero pointed a knife at the man in the accident.
    Worst about this case is that it took an appeal for the case to be dismissed in favor of the hero. The first trial, the hero was told he had to pay the fat bloke damages.
    These cases just go to show that being a hero isn’t just dangerous anymore because you try to rescue people or propertie in dangerous situations, but the people you rescue can ruin your life.
    And whats even worse is that for some unknown reason, the US justice system keeps screwing up and passing judgements against hero’s while the judges should slap the victims around the head and tell them to thank the person that saved their frigin life.

  • Skyd1ver

    1st – In Canada we have the “Good Samaritan Act” which protects people who try to help others from lawsuits like these mentioned.
    2nd – As an experienced skydiver who is also an instructor, parachute rigger, and tandem videographer, I have to comment on this. Parachutes are MADE TO OPEN! But in the case the main doesn’t, we have a reserve. The instructors are well trained in North America (and I know that the staff at The Ranch are well trained), and they know how to deal with these situations. Kudos to the Tandem Master for a great job! Shame on the passenger for casting a bad light on such a wonderful SPORT! I have seen many tandems up close and personal and have seen the PASSENGER cause spins, turns, and malfunctions! NOT the tandem master, and NOT the equipment. The passengers don’t always follow some very basic instruction that they are taught, which causes problems. It is a greater risk for the Tandem Master that they are attached to, than it can be for the passenger. How on earth do you think the Tandem Master felt after that jump?! I guarantee that he was shaken up. What this passenger did was add insult to injury.
    In Canada, this would have never seen the light of day in a court room.
    My advice is for The Ranch to go after her for every penny they had to shell out for litigation.
    The reality is that she should have gone home after getting patched up at the hospital and thanked her lucky stars that the tandem master saved her life and that she got the experience she ultimately was seeking…

  • Chris P.

    There is no such thing as PTSD in skydiving. If your not willing to assume the risk that you might die then you should not opt to do it. Equipment is made to work safely and parachutes are made to open but in reality you are still fallling towards the earth at 120mph. Things happen and that is the problem with whuffos. They assume that it never will and when something like this does and someone walks away with two stupid broken fingers they sue. It’s pathetic and lawyers that pick up cases like this make me sick. I know that the sport of skydiving would not survive without tandems but I just wish that people would think about what they are doing a little bit before they make the final decision. It is a high risk activity that no matter what will never be 100% safe.

  • R Roffel

    I beg to differ with some of the comments.
    Her lawyer is bound by his or her ethics to represent her no matter how frivolous the lawsuit appears.
    He/she was merely doing his/her job.
    That being said, I suspect that he/she took the case on for some extra money, not that he/she expected her to prevail in the case.
    For that I can fault him, since if that were the case, he/she should have not taken her on as a client in the first place.

  • skyml

    As a skydiving Instructor, I have to comment on the narrative errors in the article above. The details of the skydive were both alarming to me and amusing.
    The alarm is in how misleading the article makes the incident, the factual reporting of the entire skydive is so wrong. If the parachute failed to deploy then there would be nothing to “cutaway.” If the instructor was having trouble cutting away from amalfunctioned main canopy then to me it sounds like the student might have interferred in some manner… this is made clear here.
    The comment of somersaulting in the air was clearly added for dramatic effect… a Tandem is slowed and stabilized by a drogue chute which, in it’s nature, prevents tumbling. The only possible time for tumbling is on exit before the instructor deploys the drogue. Sometimes a student will ask to go unstable (tumbling or flipping)on exit and the instructor will allow it – this is not a ride, but training – and the instructor demonstrates the 3 dimensional space we fly in and the control we have along all axis and our ability to recover.
    The narration of the communication between the student and her instructor is very misleading, a tandem pair is falling at approximately 120mph with a drogue deployed (faster without). The pair begins to decelerate when the main is deployed and until the main has slowed descent, verbal communication is near impossible. Verbal communication under a fully deployed parachute is difficult at best due to the wind noise during flight and the use of helmets.
    Then there is the part (sorry, I found this part quite silly) about the instructor asking the student to stand on his knees… this might be what the student thought he said. When the canopy we intend to land is fully open, the tandem instructor releases the two connectors at the hips to allow for a safer landing of the tandem pair. Sometimes we need the student to stand on our feet to help release the load on the connectors as we release them. The student cannot reach our knees.
    The illustration of a tangled chute was the final misrepresentation… the image is completely misleading in every way.
    In my humble opinion, facts are important, representation and perception are everything and this article clearly gave many false impressions and went a long way to elude at some important facts. I hope this is not what played out in the law suite.
    A single skydive is a busy affair with many inherent risks. Tandem Skydiving is not a “ride,” there is far too much involved and skydiving centers make ever effort to explain this. The Instructors make every effort to make each skydive as safe as possible, their safety and well being is just as much at risk.

  • krysta

    what a dumbass, I just went for my b day yesterday for my first tandem jump. You are made fully aware of the risks as if they had to tell you, he should have cut her away and saved the world from people like her living in it and wasting our resources!!