L:P] C; ERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

SKYDIVE SACRAMENTO 

Complainant, 

vs. 

THE CITY OF LINCOLN, CALIFORNIA 

Respondent 

QjEJJXi 

OCT 2 2 2009 

AIRPORT/ENVIRONMENTAL 

LAW, AGC-600 

Docket No. 16-09-09 

COMPLAINANT'S MOTION TO STRIKE SECTION II.A. OF 

RESPONDENT'S REBUTTAL OR, IN THE ALTERNATIVE, 

FOR CORRECTION OF MISSTATEMENTS 

Please serve: 

Richard J. Durden 

Richard J. Durden, Attorney at Law 

27987 Richmond Hill Road 

Conifer, Colorado 80433 

616/901-6516 

avlawyer@vahoo.com 

Counsel for Complainant 

Scott P. Lewis 

Christine M. Griffin 

ANDERSON & KREIGER L.L.P. 

One Canal Park, Suite 200 

Cambridge, MA. 02141 

T: 617/621-6560 

F: 617/621-6660 

slewis@andersonkreiger.com 

cgriffinfgiandersonkreiger.com 

Counsel for Respondent 

NOW COMES Complainant, Skydive Sacramento, by and through its attorney and for its 

Motion to Strike Section II.A. of Respondent's Rebuttal or, in the Alternative, to Correct 

Misstatements, states as follows: 

Complaint respectfully moves that Section II.A. of Respondent's Rebuttal be stricken for 

misstatements and omissions of fact and law or, in the alternative, that the FAA consider the 
corrections of misstatement and additional facts and law set forth below in considering the 

pleadings in this matter. 

I. At page 4 of its Rebuttal, Respondent states, "So the insurance issues in this case boil 

down to these; can an airport sponsor require a skydiving operator either to procure or pay for 

reasonable limits of liability coverage for claims arising out of skydiving incidents - or must an 

airport sponsor assume substantial uninsured risks associated with a would-be commercial 

tenant's skydiving business?" 

The attempt to reframe the claims of violation having to do with insurance requirements 

set out in the Complaint, coupled with paragraphs subsequent on page 5 of the Rebuttal 

regarding insurance misstate facts in evidence and should be stricken for the following reasons: 

Respondent, in its proposed drop zone Lease defined a type and level of insurance 

coverage it requires of Complainant that is unattainable. Despite asserting in the Rebuttal that 

Complainant merely needs to raise the level of coverage. Respondent still has not provided any 

evidence that there is insurance coverage available to any commercial skydiving operator for 

"claims arising out of skydiving incidents". 

The only evidence provided, by an aviation insurance broker, and not disputed by 

Respondent, is that there is no insurance coverage available to a skydiving operator for claims 

arising out of skydiving incidents. 

On page 5 of the Rebuttal Respondent makes either inadvertent or intentionally false 

statements that Complainant has either $50,000 or $300,000 in coverage for claims by jumpers 

and third-party claims. As Complainant has pointed out repeatedly, it has $1,000,000 in 

commercial general liability insurance coverage, $1,000,000 in automobile liability insurance 

coverage and $300,000 in aircraft liability insurance coverage; however, each of these policies 
excludes coverage for claims arising from skydiving operations. Complainant is covered for 

virtually all risks except for the actual skydive itself Such coverage does not exist. 

Respondent's attempts to confuse the issue by continuing to assert that Complainant just 

needs a higher level of coverage for skydiving risks are disingenuous. Respondent leverages its 

misstatements regarding Complainant's insurance coverage into an assertion that it is working 

with Complainant to obtain a "reasonable" level of insurance. However, Respondent has never, 

ever stated that it will drop its requirement that Complainant obtain the unattainable - insurance 

that covers skydiving risks. 

Respondent directed this tribunal to Flightline Aviation, Inc., v. City ofShreveport, 2008 

WL 5955455 to support its position that it was working with Complainant to find "reasonable" 

insurance, but strangely failed to notice that Flightline holds that conditions on users of airports 

"must be relevant to the proposed activity, reasonably attainable, and uniformly applied." 

(emphasis added, at page 26) 

Complainant is aware of no Part 16 finding by the FAA that allows an airport sponsor to 

set an unattainable condition on an aeronautical user of an airport. Respondent has provided no 

citation to such a case. 

Because of the continual misstatements regarding aviation insurance by Respondent, 

Complainant suggests that this tribunal contact aviation insurance brokers who place insurance 

for skydiving operators for more detailed information on the subject. Such brokers include 

Monty Smith, Twin Lakes Insurance, 608 SW 3"* Street, Lee's Summit, Mo., 64063, 816/525-

2125; Jack Harrison, Falcon Insurance Agency, 4500 Westgrove, Suite 320, Addision, Texas, 

75001, 972/837-1290 and Jeff Norris, Air, Inc., 8975 Vans Tavern Road, Gainesville, Georgia, 

30506, 678/947-1780. Complainant also refers the tribunal to the United States Parachute 
Association for unbiased information on insurance and skydiving: 5401 Southpoint Centre 

Boulevard, Fredericksburg, VA, 22407, 540/604-9740. 

II. Respondent's continual reference to "reasonable" insurance requirements for skydiving 

access to a drop zone on the Lincoln Airport contain no actual basis for comparison as to what is 

"reasonable". It modestly asserts that the requirements it unilaterally set, without negotiation or 

consultation, are "reasonable". Given that there are scores of airports with operational, 

commercial skydiving drop zones on them and municipal airport sponsors who have established 

what they feel are reasonable insurance requirements, it would seem Respondent would have 

referenced the "reasonable" insurance requirements established by those airport sponsors to 

protect themselves. 

III. In footnote 4 on page 6 of the Rebuttal, Respondent speculates about the inability of 

commercial skydive operators to obtain "higher" limits of coverage being related to risk that 

insurers are willing to cover. Respondent again misstates the facts: there is no coverage of any 

sort for skydiving operations for a commercial skydiving operator, so there is no such thing as 

"higher" limits of coverage. Further, without actual evidence of the reason that insurers do not 

write such coverage, especially in a very limited market, speculation about risk as the reason is 

just that, speculation and the footnote should be stricken. 

IV. In footnote 7 on page 7 of the Rebuttal, Respondent brings up, for the first time 

anywhere, the subject of waivers. However, having done so, conveniently fails inform this 

tribunal of further, extremely relevant facts regarding waivers, California law and its own 

exposure to risk of skydiving liability. First, as Respondent well knows, every single person who 

jumps with Skydive Sacramento signs a waiver of liability that specifically names the City of 

Lincoln. A copy of the waiver is attached. California courts have upheld such recreational 
activity waivers. See Booth v. Santa Barbara Biplanes, 70 Cal.Rptr.3"^ 660, 158 Cal.App.4* 

1173 (2008) and Faralift, Inc. v. Superior Court, 29 Cal.Rptr.2d 177, 23 Cal.App.4* 748 (1993). 

And finally, under § 831.7 of the California Code, the City of Lincoln cannot be held liable for 

injury or damage resulting from skydiving. 

§831.7 of the Cahfomia Government Code states, in part: 

"(a) Neither a public entity nor a public employee is liable to any person 

who participates in a hazardous recreational activity, including any person 

who assists the participant, or to any spectator who knew or reasonably 

should have known that a hazardous recreational activity created a substantial 

risk of injury to himself or herself and was voluntarily in the place of risk. .. 

"(b) As used in this section, "hazardous recreational activity" means a 

recreational activity which creates a substantial (as distinguished from a 

minor, trivial or insignificant) risk of injury to a participant or a spectator. 

""Hazardous recreational activity" also means: 

"(3). .. sky diving, sport parachuting..." 

A copy of the full text of the statute is attached. 

V. While setting out varying amounts for adding skydiving coverage to its current liability 

policy in the pleadings. Respondent never actually provides evidence that there is such insurance 

coverage. Now, on page 7 of the Rebuttal, Respondent proposes, for the first time, to require 

that Complainant purchase insurance through Respondent; another approach to the concept of 

passing some portion of the City's liability insurance cost through to only one user of the airport. 

Respondent gave citations to cases and the Federal Register regarding specific user fees at 

airports, notably landing fees, for the proposition that it cannot spread the cost of its annual 

liability insurance among its airport users and operators. However, Respondent already does 

precisely that; through the money it collects on the sale of fuel, hangar and land leases, it charges 

for its insurance premium even though the specific airport user or tenant is not charged an 

apportioned amount for its percentage of the risk under the City's policy. A helicopter operator 
does not have its percentage of the risk it poses to the City under the City's coverage assigned to 

it in any fashion. It pays the same for fuel and leased space as an aircraft maintenance facility 

even though there is no indication their share of the insured risk to the City is the same. City 

wishes to pass on a specific portion of its liability insurance to only one user of the airport. 

Complainant, a practice not condoned by the cases cited by Respondent. 

Conclusion 

For the reasons stated above, Skydive Sacramento respectftilly requests that Section II.A. 

of the Rebuttal be stricken or, in the alternative, that the corrections and omissions of fact and 

error set forth above be considered with the remainder of the pleadings. 

Respectfully submitted, 

Richard J. Durden, Attorney at Law 

Attorney for Complainant 

Dated: ^g/-^ / 2-e>of yJl.u^ 

ichard/oT Durden 

>7987 Richmond Hill Road 

Conifer, Colorado 80433 

(616)901-65156 
CERTIFICATE OF SERVICE 

I hereby certify in accordance with 14 CFR Part 16.15(a) that today I served the 

foregoing Complainant's Motion to Strike Section II.A. of Respondent's Rebuttal or, in the 

Alternative, for Correction of Misstatements on the following persons at the following addresses 

by United States Postal Service Express Mail: 

Scott P. Lewis 

Anderson & Kreiger, LLP 

One Canal Park, Suite 200 

Cambridge, MA. 02141 

Office of the Chief Counsel 

FAA Part 16 Airport Proceedings Docket 

AGC-610 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, D.C. 20591 

Dated this 21st day of October, 2009 

lard J/Durden 

For Complainant 
AGREEMENT. RELEASE OF LIABILITY AND ASSUMPTION OF RISK 

THE SPORT OF SKYDIVING COULD CAUSE SERIOUS INJURY OR EVEN DEATH. 

*NOTE* Please read each paragraph carefully and place your initials where indicated ( ). This indicates 

you understand the information and terms contained therein and you accept and sign it of your own free will. 

In consideration of being permitted to use tine facilities and equipment of Skydive Sacramento to engage in ground 

instruction, flying, skydiving and related activities, hereinafter collectively referred to as "skydiving activities" 

I, (print name) , being of lawful 

age (18 years or older), by signing my initials at each paragraph and my signature at the end of this document 

do indicate that I understand and hereby agree as follows: ( ) 

PARTIES INCLUDED. I understand that this Agreement, Release of Liability and Assumption of Risk includes: 

Skydive Sacramento, its agents, employees, instructors, jumpmasters, pilots, the owner of the aircraft and land utilized 

for "skydiving activities," the U.S. Parachute Association and its members. City of Lincoln and it's employees or agents, 

the Uninsured Relative Workshop Inc. and any manufacturers of equipment used, anyone working with or for 

Skydive Sacramento, and anyone involved in my "skydiving activities", hereinafter collectively referred to in this 

Agreement, Release of Liability and Assumption of Risk as "S.S." and myself, to include my estate, heirs, spouse, 

family members and legal representatives. ( ) 

RISKS CONTEMPLATED. This Agreement is made in contemplation of all "skydiving activities", included but not 

limited to skydiving, ground instruction, flying and related activities, the exit, freefall, time under the canopy, the 

landing, any rescue operations or attempts whether on, above or off any facilities used by "S.S.". ( ) 

RELEASE FROM LIABILITY. I hereby release "S.S." from any and all liability, claims, demands, or action that I may 

have for injuries arising out of my participation in "skydiving activities" even if caused by negligence or other fault 

of "S.S." ( ) 

COVENANT NOT TO SUE. I further agree that I will not sue or make claim against "S.S." for damages or other 

losses sustained as a result of my participation in "skydiving activities" even if caused by negligence or other fault 

of "S.S." ( ) 

INDEMNIFICATION AND HOLD HARMLESS I also agree to indemnify and hold "S.S." harmless from all claims, 

judgments and costs, including but not limited to attorneys' fees, and to reimburse them for any expenses whatsoever 

incurred in connection with any action brought as a result of my participation in "skydiving activities." ( ) 

ASSUMPTION OF RISK. I understand that "skydiving activities" are inherently dangerous. I expressly and 

voluntarily assume all risk of death or personal injury sustained while participating in "skydiving activities" whether or 

not caused by the negligence or other fault of "S.S.", including but not limited to equipment malfunction from whatever 

cause, inadequate training, any deficiencies in the landing area, rescue attempts, bad landings, or any other injury I 

may sustain, even if caused by negligence or any fault of "S.S." ( ) 

FINANCIAL RESPONSIBILITY. I assume all financial responsibility, while participating in "skydiving activities" whether 

or not caused by the negligence or other fault of "S.S.", for any medical expenses or damages to any person, 

property, equipment, aircraft or "S.S.", including myself ( ) 

PARTIES BOUND BY THIS AGREEMENT. It is my understanding and intention that this Release and Agreement be 

binding not only on myself, but on anyone or any entity, including my estate and my heirs, that or who may be able to 

or does sue because of my injury or death. It is further my understanding and agreement that this Release is intended 

to and does release "S.S." from any and all claims or obligations whatsoever arising in any way from my participation in 

"skydiving activities" even if caused by negligence or other fault. ( ) 

LIMITATION OF WARRANTY. "S.S." hereby warrants that the equipment provided by "S.S." has been previously 

used for "skydiving activities." This warranty is the only warranty made and is made in lieu of any other warranties, 

express or implied, including but not limited to warranty of merchant ability or fitness for a particular purpose. I have 

read the above paragraph, acknowledge that I understand it and accept the limitation of warranty. ( ) 

DURATION OF RELEASE. It is my understanding and intention that this Release and Agreement be effective not only 

for my first skydive but for any subsequent skydives or activities in any way associated with "S.S.". ( J 

ENFORCEABILITY. I agree that if any portions of this Release and Agreement are found to be unenforceable or 

against public policy, that only that portion shall fail, but I specifically waive any un-enforceability or any public policy 

argument that I may make or that may be made on behalf of my estate or by anyone who would sue because of my 

injury or death. ( ) 

MEDIA RELEASE. I agree and am willing to allow "S.S." to use my image and /or name on any "film, videotape or 

printed material" taken at "S.S." for publicity or entertainment purposes at no charge to "S.S.". ( ) 
LEGAL RIGHTS. It has been explained to me, and I understand, that by signing this document I give up 

important legal rights. It is my intention to do so. ( ) 

VIEWING OF VIDEOTAPE. I have viewed and I warrant that I fully understand the accompanying "Tandem Vector 

Waiver" videotape. ( ) 

UNDERSTANDING/BINDING OR AGREEMENT. I hereby certify that I have read and understand the contents of 

this document and accept all terms and conditions contained herein. ( ) 

MEDICAL STATEMENT 

I, (print name)_ .recognize that 

skydiving is a strenuous, vigorous, athletic endeavor and that I may be subject to health risks not normally 

associated with other sports. I am not aware of and am not under treatment for any physical infirmity or 

chronic ailment or injury of any nature that would affect my ability to train and/or skydive safely. 

Are you under any medication of any kind at the present time? Yes (, 

If yes. Describe: 

) No(, ) 

MEDICATIONS or ALLERGIES|_ 

Do you have normal vision [yes_ 

J_l_l_l_l_l_l_l_l_l_l_ l YOUR BLOOD TYPE:|_|_|_| 

][no_ ] or do you wear corrective lenses? [yes ] [no ] 

I hereby certify and warrant that the statements contained above are true and correct to the best of my knowledge and 

belief I further certify and understand that acceptance of the application by Skydive Sacramento will be made on the 

basis of the statements contained above, and such accepted application will become part of the agreement between 

myself and Skydive Sacramento to provide this service. 

Date Signature (applicant/participant) Signature of witness-representative of "S.S." 

EMERGENCY MEDICAL INFORMATION: In case of an emergency (yours), the following information will be needed. 

Please leave ID documents, insurance cards, etc. with a friend or on your person where it can easily be found. 

PERSON TO NOTIFY: _ 

PHONE NUMBER: (_L 

J_I_I_I_I_I_I_I_I_L J_l_l_l_l_l_l_l_l_l_l_l_l_l_l_l_l_l 

J_)-I_l_l_l-I_l. 

MEDICAL INS. COMPANY: |_|_|_|_ | 

POLICY # or SSN: i_|_|_|-|_|_|-|_|_| . 

J_l_|2nd#:(_|_|_H_L _I_|-I_l_l_l_l 

.l_l_l_l_l_l_l_L 

J_I_L J_I_I_I_I_I_I_I_I_I_I_I_I_L 

YOUR NAME: |_|_|_|_|_|_|_|_ | 

Last 

J_L J_l_l l_l_l_l_l_l_l_l_l_l_l_l_l_l_l_ l l_l 

First 

DOB |_|_/_|_/_|_|_|_ | SEX |_| WT.|_|_|_|lbs . HT |_-|_l_" l 

Month Day Year 

ADDRESS 

CITY|_|_| 

J_l_l_l_l_l_l_l_l_l_l_l_l_l_l_i_l_l_l_l_l_l_l_L 

Middle Initial 

J_I_I_L J 

J_i_l_l_L J_L J_I_I_I_I_I_I_L 

COUNTRY|_|_|_|_ J_L 

JSTATE|_|_| ZIP|_|_|_|_|_|_ | 

J_l_l_l_l_l_|OCCUPATION|_|_|_|_|_|_|_|_|_|_|_|_|_|_ | 

PHONE-HOME (_|_|_)|_|_|_|-|_I_L 

EMAIL |_|_|_|_|_|_|_|_|_|_|_| _ 

_| WORK (_|_|_)|_|_|_|-|_|_|_|_ | 

J_I_I_I_I_I_I_I_I_I_I_I_I_I_I_I_I_I_I_L J_l 

How did you hear about us? Yellow Pages[ ] Billboard[ ] Bumpersticker[ ] Mailer[ ] Friend [ ] 

Newspaper[ ] Radio/TV[ ] A Skydiver[ ] lnternet[ jOther ] 

For Experienced Skydivers: 

USPA #|_!_|_|_|_|_|_|_|_ | EXP. DATE|_|_/_|_|_|_ | LICENSE # |_|-|_I_I_ L 

TOTAL # SKYDIVES |_|_|_|_|_|_ | SKYDIVES LAST 6 MONTHS |_|_|_|_ | 

EQUIPMENT: DATE RESERVE PACKED |_|_/_|_/_|_|_|_ | CHECKED BY |_|_|_|_|_|_|_ | 

Month Day Year 

06/2002 REGISTRATION STATEMENT [ T AFF S/L Exp. OBS] 

J_! 
Notice of Waiver Enforceability. 

The agreement you will sign before participating in activities at Skydive 

Sacramento is valid and will be fully enforced. Read these documents carefully, 

as you will be signing away any and all rights to sue. You will also be 

agreeing that you or your estate will pay any and all cost incurred by 

Skydive Sacramento and / or all parties included in any action brought 

against these parties as a result to your participation of activities associated with 

Skydive Sacramento. 

I hereby certify and warrant that I have read 

Print your name here 

this statement and fully understand and agree to be bound by this agreement. 

Date Signature (applicant / participant) 

Date Signature of witness - representative of Skydive Sacramento 

Notice of Waiver Enforceability. 

The agreement you will sign before participating in activities at Skydive 

Sacramento is valid and will be fully enforced. Read these documents carefully, 

as you will be signing away any and all rights to sue. You will also be 

agreeing that you or your estate will pay any and all cost incurred by 

Skydive Sacramento and / or all parties included in any action brought 

against these parties as a result to your participation of activities associated with 

Skydive Sacramento. 

I hereby certify and warrant that I have read 

Print your name here 

this statement and fully understand and agree to be bound by this agreement. 

Date Signature (applicant / participant) 

Date Signature of witness - representative of Skydive Sacramento 
California Government Code 

831.7. (a) Neither a public entity nor a public employee is liable 

to any person who participates in a hazardous recreational activity, 

including any person who assists the participant, or to any spectator 

who knew or reasonably should have known that the hazardous 

recreational activity created a substantial risk of injury to himself 

or herself and was voluntarily in the place of risk, or having the 

ability to do so failed to leave, for any damage or injury to 

property or persons arising out of that hazardous recreational 

activity. 

(b) As used in this section, "hazardous recreational activity" 

means a recreational activity conducted on property of a public 

entity which creates a substantial (as distinguished from a minor, 

trivial, or insignificant) risk of injury to a participant or a 

spectator. 

"Hazardous recreational activity" also means: 

(1) Water contact activities, except diving, in places where or at 

a time when lifeguards are not provided and reasonable warning 

thereof has been given or the injured party should reasonably have 

known that there was no lifeguard provided at the time. 

(2) Any form of diving into water from other than a diving board 

or diving platform, or at any place or from any structure where 

diving is prohibited and reasonable warning thereof has been given. 

(3) Animal riding, including equestrian competition, archery, 

bicycle racing or jumping, mountain bicycling, boating, cross-country 

and downhill skiing, hang gliding, kayaking, motorized vehicle 

racing, off-road motorcycling or four-wheel driving of any kind, 

orienteering, pistol and rifle shooting, rock climbing, rocketeering, 

rodeo, spelunking, sky diving, sport parachuting, paragliding, body 

contact sports (i.e., sports in which it is reasonably foreseeable 

that there will be rough bodily contact with one or more 

participants), surfing, trampolining, tree climbing, tree rope 

swinging, waterskiing, white water rafting, and windsurfing. For the 

purposes of this subdivision, "mountain bicycling" does not include 

riding a bicycle on paved pathways, roadways, or sidewalks. 

(c) Notwithstanding the provisions of subdivision (a), this 

section does not limit liability which would otherwise exist for any 

of the following: 

(1) Failure of the public entity or employee to guard or warn of a 

known dangerous condition or of another hazardous recreational 

activity known to the public entity or employee that is not 

reasonably assumed by the participant as inherently a part of the 

hazardous recreational activity out of which the damage or injury 

arose. 

(2) Damage or injury suffered in any case where permission to 

participate in the hazardous recreational activity was granted for a 

specific fee. For the purpose of this paragraph, a "specific fee" 

does not include a fee or consideration charged for a general purpose 

such as a general park admission charge, a vehicle entry or parking 

fee, or an administrative or group use application or permit fee, as 

distinguished from a specific fee charged for participation in the 

specific hazardous recreational activity out of which the damage or 

injury arose. 

(3) Injury suffered to the extent proximately caused by the 

negligent failure of the public entity or public employee to properly 

construct or maintain in good repair any structure, recreational 
equipment or machinery, or substantial work of improvement utilized 

in the hazardous recreational activity out of which the damage or 

injury arose. 

(4) Damage or injury suffered in any case where the public entity 

or employee recklessly or with gross negligence promoted the 

participation in or observance of a hazardous recreational activity. 

For purposes of this paragraph, promotional literature or a public 

announcement or advertisement which merely describes the available 

facilities and services on the property does not in itself constitute 

a reckless or grossly negligent promotion. 

(5) An act of gross negligence by a public entity or a public 

employee which is the proximate cause of the injury. 

Nothing in this subdivision creates a duty of care or basis of 

liability for personal injury or for damage to personal property. 

(d) Nothing in this section shall limit the liability of an 

independent concessionaire, or any person or organization other than 

the public entity, whether or not the person or organization has a 

contractual relationship with the public entity to use the public 

property, for injuries or damages suffered in any case as a result of 

the operation of a hazardous recreational activity on public 

property by the concessionaire, person, or organization.