Morgan v. State of Tennessee, 2004 Tenn. App. LEXIS 62
Evelean Morgan v. State of Tennessee
COURT OF APPEALS OF TENNESSEE, AT NASHVILLE
2004 Tenn. App. LEXIS 62
November 3, 2003, Session
January 27, 2004, Filed
PRIOR HISTORY: [*1] Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission Affirmed. Appeal from the Tennessee Claims Commission No. 99000125 W. R. Baker, Commissioner.
DISPOSITION: Affirmed and remanded.
COUNSEL: David H. Dunaway, LaFollette, Tennessee, for the appellant, Evelean Morgan.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Christopher Michael Fancher, Assistant Attorney General, for the appellee, State of Tennessee.
JUDGES: WILLIAM C. KOCH, JR., P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN and PATRICIA J. COTTRELL, JJ., joined.
OPINION BY: WILLIAM C. KOCH, JR., P.J., M.S.
This appeal involves a fatal accident at the Colditz Cove State Natural Area in Fentress County. The mother of a woman who fell to her death from the bluff surrounding Northrup Falls filed a claim with the Tennessee Claims Commission. The State of Tennessee denied liability based on (1) the recreational use defense in Tenn. Code Ann. § 70-7-102 (1995), (2) its lack of actual or constructive notice of a dangerous condition, and (3) its assertion that the decedent’s fault exceeded its own. The commissioner granted the State’s motion for summary judgment. [*2] While he did not rely on the statutory recreational use defense, the commissioner determined that the State had no notice of a dangerous condition at the natural area, it was not reasonably foreseeable that intoxicated persons who were unfamiliar with the natural area would hike into the area of the falls in the middle of the night, and the decedent’s actions were the sole proximate cause of her death. The decedent’s mother has appealed. We have determined that the commissioner properly granted the summary judgment because, as a matter of law, (1) the State established a defense under Tenn. Code Ann. § 70-7-102, (2) the decedent’s estate presented no evidence that the State had actual or constructive notice of an allegedly dangerous condition on the trail in the natural area, and (3) the decedent’s fault far exceeded whatever fault could be attributed to the State.
Rochelle Copeland Zegilla and her two small children were living with her mother in mid-1997 following a separation from her husband. On Saturday evening, July 26, 1997, she told her mother that she was “going to go out for awhile,” and then she drove to the Top of the Mountain Lounge in [*3] Jamestown, Tennessee. After the lounge closed at midnight, Ms. Zegilla and four companions 1 decided to drive to a nearby VFW club. When they arrived at the club, however, they discovered that it had closed earlier than usual. After a brief discussion in the club parking lot, the group decided to continue their drinking and talking in the parking lot of the Colditz Cove State Natural Area.
1 Ms. Zegilla’s companions at the Top of the Mountain Lounge were Chris Smith, Loretta Johnson, Edward Raines, and Larry King.
The Colditz Cove State Natural Area is a 165-acre Class II natural-scientific area in Fentress County owned by the State of Tennessee. It is heavily wooded and contains the 75-foot Northrup Falls and a scenic gorge with interesting rock formations. 2 The area has been designated by statute as “worthy of perpetual preservation,” 3 and accordingly, improvements to the area are limited to foot trails, foot bridges, and primitive campgrounds 4 and “facilities as may be reasonably necessary . . .for [*4] the safe and proper management and protection of the area.” 5 In addition to a parking lot, the State had erected several signs and a gate and had constructed a 1.5 mile foot trail along the bluff overlooking Northrup Falls, as well as a scenic overlook. The State had not installed lights in the parking lot or along the foot trail.
2 Tenn. Code Ann. § 11-14-108(b)(2)(F) (Supp. 2003).
3 Tenn. Code Ann. § 11-14-105(2) (1999).
4 Tenn. Code Ann. § 11-14-106(a)(1)(B) (1999).
5 Tenn. Code Ann. § 11-14-106(a)(2).
All of the group except Mr. Raines had been drinking throughout the evening, and they continued drinking in the parking lot because Messrs. Smith and King had brought along a cooler of beer purchased earlier in the evening at Midway Qwick Stop. After talking for several minutes, the group decided to walk down the foot trail toward Northrup Falls in the pitch dark even though [*5] three of them, including Ms. Zegilla, had never been to Colditz Cove before. The only illumination they had was Mr. King’s flashlight.
When the group reached a fork in the trail, Mr. Raines and Ms. Johnson decided to walk no further and sat near a trash container to talk and drink. Ms. Zegilla and Messrs. Smith and King kept walking along the trail toward Northrup Falls. After they stopped to drink and talk, Mr. King asked Mr. Smith to shine the flashlight into the bushes to enable him to find a place to urinate. Mr. King walked into the bushes and, on his return, he fell over the bluff into the gorge below.
Mr. Smith yelled, “Larry has fallen off,” and called to Mr. Raines for assistance. Mr. Raines made his way down the trail to Mr. Smith and Ms. Zegilla. After they all called out to Mr. King to no avail, Mr. Raines decided to go for help and took the flashlight to help make his way back up the foot path to the parking lot. Ms. Zegilla and Mr. Smith, now joined by Ms. Johnson, continued to call for Mr. King. Mr. Smith decided to start a fire with his shirt to make some light. After his shirt went out, Ms. Zegilla somehow fell over the bluff. The rescue workers who arrived at the [*6] scene at approximately 1:30 a.m. on Sunday, July 27, 1997, found the lifeless bodies of both Mr. King and Ms. Zegilla in the water at the bottom of the falls. An autopsy revealed that Ms. Zegilla’s blood alcohol level was .18%.
On July 23, 1998, Evelean Morgan, Ms. Zegilla’s mother and her personal representative, filed a claim for $ 500,000 with the Tennessee Claims Commission asserting that the State had violated Tenn. Code Ann. § 9-8-307(a)(1)(C) (Supp. 2003) by negligently creating or maintaining a dangerous condition at Colditz Cove State Natural Area. 6 The State moved to dismiss the claim on the ground that it was shielded from liability by the recreational use statute [Tenn. Code Ann. §§ 70-7-101, -105 (1995)]. After the claims commissioner denied its motion, the State filed an answer denying Ms. Morgan’s negligence claims. The State asserted, as affirmative defenses, (1) that Tenn. Code Ann. § 70-7-102 shielded it from liability, (2) that it had no actual or constructive notice of a dangerous condition at Colditz Cove State Natural Area and that it was not reasonably foreseeable that intoxicated [*7] persons who were unfamiliar with the natural area would hike into the area of the falls in the middle of the night, and (3) that Ms. Zegilla’s own negligence “contributed in excess of 50% to the cause of her death.”
6 Ms. Morgan also filed a civil damage action in the Circuit Court for Fentress County against Ms. Johnson, Messrs. Smith and Raines, and the estate of Mr. King.
In February 2002, following lengthy and somewhat contentious discovery, the State moved for a summary judgment on two grounds – Tenn. Code Ann. § 70-7-102 and its assertion that Ms. Zegilla’s “negligence was equal to or greater than [the] negligence of the State, if any.” 7 In April 2002, Ms. Morgan responded by asserting that the State was not entitled to a judgment on either ground because the State was grossly negligent and because its negligence was greater than Ms. Zegilla’s. The claims commissioner held a hearing on the State’s motion for summary judgment after conducting his own personal inspection of [*8] the Colditz Cove State Natural Area without the lawyers or parties present. On June 5, 2002, the commissioner filed an order granting the State’s motion for summary judgment. While the commissioner declined to base his decision on Tenn. Code Ann. § 70-7-102, he determined that the undisputed evidence demonstrated as a matter of law that Ms. Morgan had not shown that she could prove notice and foreseeability as required by Tenn. Code Ann. § 9-8-307(a)(1)(C) and that Ms. Zegilla was “preponderantly negligent in her own death.” 8 The commissioner later denied Ms. Morgan’s request for a hearing before the entire claims commission. Ms. Morgan has appealed.
7 The State based the latter assertion on what it called the “step in the dark” rule, i.e., that stepping into an unfamiliar dark area constitutes the proximate cause of injuries sustained by falling down stairs hidden in the darkness. Eaton v. McLain, 891 S.W.2d 587, 594 (Tenn. 1994); Goodman v. Memphis Park Comm’n, 851 S.W.2d 165, 171 (Tenn. Ct. App. 1992).
8 We construe this finding to be that Ms. Zegilla’s fault exceeded the fault of the State, if any. The claims commissioner stated later in its order that “the sole proximate cause of Ms. Zegilla’s death was her own actions.”
THE STANDARD OF REVIEW
The standards for reviewing summary judgments on appeal are well-settled. [HN1] Summary judgments are proper in virtually any civil case that can be resolved on the basis of legal issues alone. Fruge v. Doe, 952 S.W.2d 408, 410 (Tenn. 1997); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Pendleton v. Mills, 73 S.W.3d 115, 121 (Tenn. Ct. App. 2001). They are not, however, appropriate when genuine disputes regarding material facts exist. Tenn. R. Civ. P. 56.04. Thus, a summary judgment should be granted only when the undisputed facts, and the inferences reasonably drawn from the undisputed facts, support one conclusion – that the party seeking the summary judgment is entitled to a judgment as a matter of law. Pero’s Steak & Spaghetti House v. Lee, 90 S.W.3d 614, 620 (Tenn. 2002); [*10] Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn. 2001).
[HN2] The party seeking a summary judgment bears the burden of demonstrating that no genuine dispute of material fact exists and that it is entitled to a judgment as a matter of law. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002); Shadrick v. Coker, 963 S.W.2d 726, 731 (Tenn. 1998). To be entitled to a judgment as a matter of law, the moving party must either affirmatively negate an essential element of the non-moving party’s claim or establish an affirmative defense that conclusively defeats the non-moving party’s claim. Byrd v. Hall, 847 S.W.2d at 215 n. 5; Cherry v. Williams, 36 S.W.3d 78, 82-83 (Tenn. Ct. App. 2000).
[HN3] Once the moving party demonstrates that it has satisfied Tenn. R. Civ. P. 56’s requirements, the non-moving party must demonstrate how these requirements have not been satisfied. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). Mere conclusory generalizations will not suffice. Cawood v. Davis, 680 S.W.2d 795, 796-97 (Tenn. Ct. App. 1984). The non-moving party must convince the [*11] trial court that there are sufficient factual disputes to warrant a trial (1) by pointing to evidence either overlooked or ignored by the moving party that creates a factual dispute, (2) by rehabilitating evidence challenged by the moving party, (3) by producing additional evidence that creates a material factual dispute, or (4) by submitting an affidavit in accordance with Tenn. R. Civ. P. 56.07 requesting additional time for discovery. McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998); Byrd v. Hall, 847 S.W.2d at 215 n. 6. A non-moving party who fails to carry its burden faces summary dismissal of the challenged claim because, as our courts have repeatedly observed, the “failure of proof concerning an essential element of the cause of action necessarily renders all other facts immaterial.” Alexander v. Memphis Individual Practice Ass’n, 870 S.W.2d 278, 280 (Tenn. 1993).
[HN4] A summary judgment is not appropriate when a case’s determinative facts are in dispute. However, for a question of fact to exist, reasonable minds must be able to differ over whether some alleged occurrence or event did or did not happen. Conatser v. Clarksville Coca-Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn. 1995); [*12] Harrison v. Southern Ry. Co., 31 Tenn. App. 377, 387, 215 S.W.2d 31, 35 (1948). If reasonable minds could justifiably reach different conclusions based on the evidence at hand, then a genuine question of fact exists. Louis Dreyfus Corp. v. Austin Co., 868 S.W.2d 649, 656 (Tenn. Ct. App. 1993). If, on the other hand, the evidence and the inferences to be reasonably drawn from the evidence would permit a reasonable person to reach only one conclusion, then there are no material factual disputes and the question can be disposed of as a matter of law. Godfrey v. Ruiz, 90 S.W.3d at 695; Seavers v. Methodist Med. Ctr., 9 S.W.3d 86, 91 (Tenn. 1999); Beaudreau v. General Motors Acceptance Corp., 118 S.W.3d 700, 703 (Tenn. Ct. App. 2003).
[HN5] Summary judgments enjoy no presumption of correctness on appeal. BellSouth Advertising & Publ’g Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn. 2003); Scott v. Ashland Healthcare Ctr., Inc., 49 S.W.3d 281, 285 (Tenn. 2001). Accordingly, appellate courts must make a fresh determination that the requirements of Tenn. R. Civ. P. 56 have been satisfied. [*13] Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997). We must consider the evidence in the light most favorable to the non-moving party, and we must resolve all inferences in the non-moving party’s favor. Godfrey v. Ruiz, 90 S.W.3d at 695; Doe v. HCA Health Servs., Inc., 46 S.W.3d 191, 196 (Tenn. 2001). When reviewing the evidence, we must determine first whether factual disputes exist. If a factual dispute exists, we must then determine whether the fact is material to the claim or defense upon which the summary judgment is predicated and whether the disputed fact creates a genuine issue for trial. Byrd v. Hall, 847 S.W.2d at 214; Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102, 104 (Tenn. Ct. App. 1998).
THE APPLICATION OF TENN. CODE ANN. § 70-7-102
The State’s defense predicated on Tenn. Code Ann. § 70-7-102 figures prominently in this appeal even though the claims commissioner expressly declined to base his decision on this defense. 9 For her part, Ms. Morgan asserts that the commissioner erred by “failing and refusing” [*14] to rule on this defense. While the State does not specifically assert that the commissioner erred by not addressing this defense, 10 it asserts that it did not owe a duty to Ms. Zegilla by virtue of Tenn. Code Ann. § 70- 7-102. Accordingly, we have decided to address the applicability of Tenn. Code Ann. § 70-7-102 to this case head on.
9 The commissioner’s cryptic rulings regarding Tenn. Code Ann. § 70-7-102 are not easy to reconcile. He stated:
The Commission renders its ruling without considering the applicability of the state Recreational Use Immunity Statute. The individuals involved in this incident were using the State property for recreation, thus the Recreational Use Statute applies.
As for gross negligence, if the facts involved the Recreational Use statute alone, in absence of the other three factors discussed heretofore, then this claim should probably proceed to trial. Although the Commission believes there was not any gross negligence, it does not base its conclusion on the Recreational Use Immunity statute.
Because the commissioner stated twice that he was not basing his decision on Tenn. Code Ann. § 70-7-102, we will take him at his word.
10 The State could have raised this issue pursuant to Tenn. R. App. P. 13(a).
At common law, property owners could be held liable for injuries to persons who were using their property, with or without their permission, for recreational purposes. Beginning in the 1950s, state legislatures began to enact statutes to limit property owners’ liability when persons were using their property for recreational purposes. 11 The Tennessee General Assembly enacted one of these statutes in 1963. 12 As originally enacted, the statute was applicable only to private landowners and excluded from its coverage the “willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.”
11 James C. Becker, Landowner or Occupier Liability for Personal Injuries and Recreational Use Statutes: How Effective Is the Protection?, 24 Ind. L. Rev. 1587, 1587-88 (1991).
12 Act of Mar. 15, 1963, ch. 177, 1963 Tenn. Pub. Acts 784, codified at Tenn. Code Ann. §§ 70-7-101, -105 (1995).
[*16] In 1987, the Tennessee General Assembly amended the recreational use statute in two significant ways that are directly applicable to this case. First, it amended the statute to explicitly apply to real property owned by governmental entities. 13 Second, it broadened the exemption to cover “gross negligence, willful or wanton conduct.” 14
13 Act of May 7, 1987, ch. 448, § 8, 1987 Tenn. Pub. Acts 897, 899, codified at Tenn. Code Ann. § 70-7-101(2)(B).
14 Act of May 7, 1987, ch. 448, § 5, 1987 Tenn. Pub. Acts 897, 898, codified at Tenn. Code Ann. § 70-7-104(1).
The operation of the recreational use statutes is straightforward. Tenn. Code Ann. § 70-7-102 [HN6] is an affirmative defense available to persons who fit within the definition of “landowner” in Tenn. Code Ann. § 70-7-101(2). Parent v. State, 991 S.W.2d 240, 242 (Tenn. 1999); Bishop v. Beckner, 109 S.W.3d 725, 728 (Tenn. Ct. App. 2002). [*17] Landowners may assert a Tenn. Code Ann. § 70-7-102 defense if they prove that the injured person was engaged in a recreational activity 15 at the time of the injury. Plaintiffs may defeat this affirmative defense in essentially three ways: (1) prove that the defendant is not a “landowner,” (2) prove that the injured party was not engaged in a recreational activity, or (3) prove that the landowner’s conduct fits within one of the three exceptions in Tenn. Code Ann. § 70-7-104. The exceptions in Tenn. Code Ann. § 70-7-104 do not create new independent causes of action against the landowner. Rather, they enable a plaintiff to pursue its negligence claim by negating a landowner’s Tenn. Code Ann. § 70-7-102 defense. Parent v. State, 991 S.W.2d at 242-43.
15 The applicable recreational activities are identified in Tenn. Code Ann. §§ 70-7-102, -103.
[HN7] Applying Tenn. Code Ann. §§ 70-7-101 [*18] , -105 to a particular case requires a three-step analysis. First, the court must determine whether the party asserting the Tenn. Code Ann. § 70-7-102 defense is a landowner. Second, the court must determine whether the activity in which the injured party was engaged at the time of the injury is a recreational activity. Third, the court must determine whether any of the exceptions in Tenn. Code Ann. § 70-7-104 are applicable to the case. See Parent v. State, 991 S.W.2d at 243. If the activity is recreational and no Tenn. Code Ann. § 70-7-104 exceptions apply, the landowner is shielded from liability by Tenn. Code Ann. § 70-7-102. If, however, the activity is recreational, but one of the exceptions applies, the landowner may be liable.
Based on the undisputed facts, there can be no dispute (1) that the State, as a governmental entity, is a “landowner” under Tenn. Code Ann. § 70-7-101(2)(B), (2) that Ms. Zegilla was engaged in a recreational activity because she was “hiking” or “sightseeing” when she fell to her death, [*19] and (3) that the land on which Ms. Zegilla was killed was not exempt from coverage of the statute. 16 Thus, the only remaining question with regard to the application of the recreational use statute is whether one of Tenn. Code Ann. § 70-7-104’s exceptions applies to this case. Ms. Morgan insists that the exception for gross negligence in Tenn. Code Ann. § 70-7-104(1) applies.
16 Ms. Morgan argued before the claims commissioner that improvements in state natural areas and parks were somehow exempt from Tenn. Code Ann. §§ 70-7-101, -105. However, both the Tennessee Supreme Court and this court have recognized that [HN8] the recreational use statute may apply to state parks and wildlife management areas. Parent v. State, 991 S.W.2d at 241; Rewcastle v. State, 2002 Tenn. App. LEXIS 943, No. E2002-00506-COA-R3-CV, 2002 WL 31926848, at *1 (Tenn. Ct. App. Dec. 31, 2002) (No Tenn. R. App. P. 11 application filed).
[HN9] Gross negligence [*20] is negligent conduct reflecting a reckless disregard for the safety of others. Davidson v. Power Bd., 686 S.W.2d 581, 586 (Tenn. Ct. App. 1984); Odum v. Haynes, 494 S.W.2d 795, 807 (Tenn. Ct. App. 1972). It does not require a particular state of mind as long as it creates an extremely unjustified risk to others. 1 DAN B. DOBBS, THE LAW OF TORTS § 147, at 351 (2001). It differs from ordinary negligence only in degree, not in kind. W. PAGE KEETON, PROSSER & KEETON ON THE LAW OF TORTS § 34, at 212 (5th ed. 1984). Thus, gross negligence is a negligent act or failure to act that reflects more than lack of ordinary care (simple negligence) but less than intentional misconduct. Inter-City Trucking Co. v. Daniels, 181 Tenn. 126, 129-30, 178 S.W.2d 756, 757 (1944); Bennett v. Woodard, 60 Tenn. App. 20, 31-32, 444 S.W.2d 89, 94 (1969).
[HN10] Determining whether particular conduct rises to the level of gross negligence is ordinarily a question of fact. 3 STUART M. SPEISER ET AL., THE AMERICAN LAW OF TORTS § 10:05, at 368 (1986) (“SPEISER”); see also Adams v. Roark, 686 S.W.2d 73, 76 (Tenn. 1985) (gross negligence [*21] determined from the facts alleged in the complaint). However, it may be decided as a matter of law when the material facts are not in dispute and when these facts, and the conclusions reasonably drawn from them, would permit a reasonable person to reach only one conclusion. Leatherwood v. Wadley, 121 S.W.3d 682, ___, 2003 WL 327517, at *8-9 (Tenn. Ct. App. 2003) (affirming summary judgment dismissing gross negligence claim); Buckner v. Varner, 793 S.W.2d 939, 941 (Tenn. Ct. App. 1990) (affirming summary judgment dismissing gross negligence claim); Fellows v. Sexton, 46 Tenn. App. 274, 282, 327 S.W.2d 391, 394 (1959) (granting a judgment notwithstanding the verdict on a gross negligence claim).
We find no evidence in this record upon which a reasonable person would conclude that the State was grossly negligent with regard to the construction or maintenance of the Colditz Cove State Natural Area. The State had a statutory obligation to maintain this area in a pristine, natural condition. Erecting warning signs, installing lighting along the trails, fencing the entire area, or installing guard rails, barriers, or other sorts of buffers, [*22] while perhaps appropriate at Dollywood, would have been entirely unwarranted and unnecessary at a natural area such as Colditz Cove. Accordingly, we have determined that the record, as a matter of law, supports the claims commissioner’s conclusion that “there was not any gross negligence.” 17 The State was simply not acting recklessly with disregard of the safety of persons entering the natural area.
17 Ms. Morgan asserts in her brief that “the State of Tennessee knew that at Northrop [sic] Falls . . . there was a cliff that eroded into a commonly used path which suddenly dropped at a ninety degree angle approximately one hundred feet and that it posed a deadly, dangerous condition.” This is the only assertion in her papers that approaches an allegation of gross negligence. We have searched the record for substantiation of this claim and have found none. There is no evidence that any of the trails in Colditz Cove had dangerously eroded on July 26, 1997. There is no evidence that the State had actual or constructive notice of any dangerous erosion along any of the trails in the natural area. There is likewise no evidence that either Ms. Zegilla or Mr. King fell to their deaths at a spot on the trail that had eroded.
[*23] Because the State was not grossly negligent, it was entitled to assert a defense predicated on Tenn. Code Ann. § 70-7-102. Therefore, we have concluded, based on the undisputed facts, that the recreational use statute shields the State from liability for Ms. Zegilla’s death and that the State was entitled to a summary judgment dismissing her claims on this ground alone.
THE STATE’S LIABILITY UNDER TENN. CODE ANN. § 9-8-307(a)(1)(C)
Despite our conclusion that the State has established an affirmative defense under Tenn. Code Ann. § 70-7-102 as a matter of law, we will also address Ms. Morgan’s assertion that the claims commissioner erred by concluding that she had failed to demonstrate that she would be able to prove that the State was liable for her daughter’s death under Tenn. Code Ann. § 9-8-307(a)(1)(C). We have concluded that the undisputed facts also support the commissioner’s conclusion that the State was entitled to a judgment as a matter of law because Ms. Morgan had not demonstrated that she would be able to prove the essential elements of her claim.
[*24] [HN11] The State is not the insurer of the safety of persons on its property. Byrd v. State, 905 S.W.2d 195, 197 (Tenn. Ct. App. 1995). It is, however, liable to these persons to the same extent that private owners and occupiers of land are liable, Sanders v. State, 783 S.W.2d 948, 951 (Tenn. Ct. App. 1989), because Tenn. Code Ann. § 9-8-307(a)(1)(C) has imposed this common-law duty on the State. Parent v. State, 991 S.W.2d at 242. Tenn. Code Ann. § 9-8-307(a)(1)(C) provides that the State may be held monetarily liable for
Negligently created or maintained dangerous conditions on state controlled real property. The claimant under this subsection must establish the foreseeability of the risks and notice given to the proper state officials at a time sufficiently prior to the injury for the state to have taken appropriate measures.
Based on this statute, the State, like a private landowner, has a duty to exercise reasonable care under the circumstances to prevent foreseeable injuries to persons on the premises. Eaton v. McLain, 891 S.W.2d at 593-94. This duty is [*25] grounded on the foreseeability of the risk involved. To recover, a claimant must prove that the injury was a reasonably foreseeable probability. Dobson v. State, 23 S.W.3d 324, 331 (Tenn. Ct. App. 1999).
Tenn. Code Ann. § 9-8-307(a)(1)(C) required Ms. Morgan to prove that Ms. Zegilla was injured in a manner that was reasonably foreseeable and that the State had actual or constructive notice of the dangerous condition that caused Ms. Zegilla’s death in time to take “appropriate measures.” The claims commissioner properly concluded that she failed on both counts.
The record contains no factual, legal, or policy basis for concluding that the State should have foreseen that intoxicated persons who were unfamiliar with the Colditz Cove State Natural Area would hike down the trail to Northrup Falls in the middle of the night without adequate illumination.
Likewise, the record contains no evidence meeting the standards in Tenn. R. Civ. P. 56.04 and Tenn. R. Civ. P. 56.06 that the improvements to Colditz Cove are either inherently dangerous 18 or, as we have already pointed out, that the State had actual or constructive notice of any particular [*26] dangerous condition in the natural area that caused Ms. Zegilla’s death.
18 Ms. Morgan’s lawyer asserted in the proceeding below that he had consulted an architect who “felt” that the Colditz Cove State Natural Area was “unduly dangerous” and that “the majority of the defects were certainly foreseeable and could have been rectified at a relatively modest capital investment.” While the record contains an unauthenticated letter from this architect summarizing his impressions of the improvements in the natural area, it does not contain the architect’s affidavit or deposition stating these conclusions. The architect’s letter does not meet the requirements in Tenn. R. Civ. P. 56.04 and Tenn. R. Civ. P. 56.06 for evidentiary materials that may be used to support or oppose a motion for summary judgment.
COMPARISON OF MS. ZEGILLA’S FAULT WITH THE STATE’S FAULT
As a final issue, Ms. Morgan asserts that the claims commissioner erred by determining that Ms. Zegilla’s fault exceeded the State’s fault. [*27] She bases her argument on the assertion that the State’s “gross negligence” should somehow count for more in a comparative fault analysis. We have determined that this argument has no merit for two reasons. First, we have already concluded that the undisputed facts demonstrate, as a matter of law, that the State was not grossly negligent. Second, even if the States could somehow be considered grossly negligent, its fault would still be compared with Ms. Zegilla’s fault. Conroy v. City of Dickson, 49 S.W.3d 868, 873 (Tenn. Ct. App. 2001). A majority of the courts in comparative fault jurisdictions permit gross negligence to be compared to ordinary negligence. 3 SPEISER, § 13:25, at 764; 1 ARTHUR BEST, COMPARATIVE NEGLIGENCE LAW & PRACTICE § 4.40 (1999); Restatement (Third) of Torts: Apportionment of Fault § 7 cmt. b (1999).
[HN12] The allocation of fault is ordinarily a question of fact for the jury or the trial court sitting without a jury. Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 789 (Tenn. 2000). The task of allocating fault should be taken from the fact-finder only when it can be determined beyond question (or alternatively, when reasonable [*28] minds cannot differ) that the plaintiff’s fault is equal to or greater than the defendant’s. Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 91-92 (Tenn. 2000); Eaton v. McLain, 891 S.W.2d at 589; Kim v. Boucher, 55 S.W.3d 551, 556-57 (Tenn. Ct. App. 2001). The procedural avenues for obtaining a decision that the plaintiff’s fault exceeds the defendant’s as a matter of law are governed by the Tennessee Rules of Civil Procedure. The question may be raised using (1) a motion for summary judgment under Tenn. R. Civ. P. 56, (2) a motion for directed verdict governed by Tenn. R. Civ. P. 50.01, and (3) a post-trial motion for a judgment as a matter of law governed by Tenn. R. Civ. P. 50.02. Henley v. Amacher, 2002 Tenn. App. LEXIS 72, No. M1999-02799-COA-R3-CV, 2002 WL 100402, at *6 (Tenn. Ct. App. Jan. 28, 2002) (No Tenn. R. App. P. 11 application filed).
Ms. Zegilla’s voluntary intoxication on the evening of July 26, 1997 does not relieve her from the responsibility of her own negligence. Kirksey v. Overton Pub, Inc., 739 S.W.2d 230, 235 (Tenn. 1987); Schwartz v. Johnson, 152 Tenn. 586, 592, 280 S.W. 32, 33 (1926). [*29] She was required to use reasonable care under the circumstances, and her conduct must be measured against the conduct of an ordinary, reasonable person rather than an ordinary and reasonable intoxicated person. Louisville & Nashville R.R. v. Hall, 5 Tenn. Civ. App. 491, 502 (1915). Accordingly, if her conduct while intoxicated was a proximate cause of her death, it may be compared with the fault of the other parties whose fault was also a proximate cause. Worley v. State, 1995 Tenn. App. LEXIS 755, No. 02A01-9312-BC-00267, 1995 WL 702792, at *6 (Tenn. Ct. App. Nov. 28, 1995) (No Tenn. R. App. P. 11 application filed).
It cannot be reasonably disputed that Ms. Zegilla was intoxicated when she arrived at Colditz Cove State Natural Area after midnight on July 26, 1997. Even though she had never visited the natural area before, she decided to venture into a wooded area down an unfamiliar, rough foot path in the dark. After one of her companions fell to his death, she continued to walk around in the darkness even though she must have known that danger was close at hand. As tragic as her death is, the only conclusion that reasonable persons can draw from these facts is that her fault [*30] far exceeded any fault that may reasonably be attributed to the State. Accordingly, the claims commissioner properly concluded the State was not liable to Ms. Zegilla’s estate because her fault exceeded any fault that could be attributed to the State.
We affirm the order dismissing the Tenn. Code Ann. § 9-8-307(a)(1)(C) claim of Ms. Zegilla’s estate against the State and remand the case to the Tennessee Claims Commission for whatever further proceedings may be required. We tax the costs of this appeal to Evelean Morgan for which execution, if necessary, may issue.
Give Kids The World, Inc., v. Sanislo, 2012 Fla. App. LEXIS 7403; 37 Fla. L. Weekly D 1143
Give Kids The World, Inc., Appellant, v. Stacy Sanislo and Eric Sanislo, Appellees.
Case No. 5D11-748
COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT
2012 Fla. App. LEXIS 7403; 37 Fla. L. Weekly D 1143
May 11, 2012, Opinion Filed
PRIOR HISTORY: [*1]
Appeal from the Circuit Court for Osceola County, Jeffrey Fleming, Judge.
COUNSEL: Wm. Jere Tolton, lll, of Ogden & Sullivan, P.A., Tampa, and Matthew J. Haftel of O’Connor & O’Connor, LLC, Orlando, for Appellant.
Michael J. Damaso, ll, of Wooten, Kimbrough and Normand, P.A., Orlando, and Jack W. Shaw, Jr., of Jack W. Shaw, Jr., P.A., Winter Park, for Appellees.
JUDGES: ORFINGER, C.J., and PALMER, J., concur. COHEN, J., concurs and concurs specially with opinion.
Give Kids the World, Inc. (“GKTW”), the defendant below, appeals a final judgment entered against it in a negligence action. GKTW argues that the lower court erred by denying its pretrial motion for summary judgment on its affirmative defense of release. We agree and reverse.
GKTW is a non-profit organization that provides free “storybook” vacations to seriously ill children and their families at its resort village, the Give Kids the World Village (“the Village”). Stacy and Eric Sanislo (“the Sanislos”) are the parents of a young girl with a serious illness. In November 2004, the Sanislos executed a liability release to GKTW in connection with a “wish request” that benefitted their daughter.1 The release, in pertinent part, provided:
By [*2] my/our signature(s) set forth below, and in consideration of Give Kids the World, Inc. granting said wish, I/we hereby release Give Kids the World, Inc. and all of its agents, officers, directors, servants and employees from any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish, on behalf of ourselves, the above named wish child and all other participants. The scope of the release shall include, but not be limited to, damages or losses or injuries encountered in connection with transportation, food, lodging, medical concerns (physical and emotional), entertainment, photographs and physical injury of any kind.
. . . .
I/we further agree to hold harmless and to release Give Kids the World, Inc. from any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/or damages which may happen to me/us, or damage to or theft of our personal belongings, jewelry or other personal property which may occur while staying at the Give Kids the World Village.
The wish request was approved and, upon their arrival at the Village from the state of Washington, the Sanislos executed another liability release [*3] with identical language.
1 Fulfillment of a child’s wish is accomplished in conjunction with the Make-AWish Foundation, a separate entity from GKTW.
During the course of her stay at the Village, Stacy Sanislo was injured when she, along with her husband, posed for a picture on a pneumatic wheelchair lift that was attached to the back of a horse-drawn wagon. The lift collapsed because the weight limit had been exceeded, injuring Ms. Sanislo. The Sanislos brought suit against GKTW, alleging that Ms. Sanislo’s injuries were caused by GKTW’s negligence. In its answer, GKTW asserted the affirmative defense of release. Subsequently, GKTW filed a motion for summary judgment, arguing that the signed liability releases precluded a finding of liability. The Sanislos filed a motion for partial summary judgment on the issue of release as well. The trial court denied GKTW’s motion, but granted that of the Sanislos.2 Following a jury verdict, judgment was entered in the Sanislos’ favor.
2 The parties stipulated that if the trial court granted one of the motions for summary judgment, then the other should be denied.
On appeal, GKTW correctly asserts that it was entitled to summary judgment based on the [*4] release. [HN1] Exculpatory clauses are disfavored under the law, but unambiguous exculpatory contracts are enforceable unless they contravene public policy. Applegate v. Cable Water Ski, L.C., 974 So. 2d 1112, 1114 (Fla. 5th DCA 2008) (citing Cain v. Banka, 932 So. 2d 575, 578 (Fla. 5th DCA 2006)). The wording of the exculpatory clause must be clear and understandable so that an ordinary and knowledgeable person will know what he or she is contracting away. Raveson v. Walt Disney World Co., 793 So. 2d 1171, 1173 (Fla. 5th DCA 2001). This Court has expressly “rejected the need for express language referring to release of the defendant for ‘negligence’ or ‘negligent acts’ in order to render a release effective to bar a negligence action.” Cain, 932 So. 2d at 578. In Cain, this Court noted that an exculpatory clause absolving a defendant of “any and all liability, claims, demands, actions, and causes of action whatsoever” was sufficient to encompass the plaintiff’s negligence action filed against a defendant track owner in connection with motocross bike riding. Id. at 579; see also Hardage Enters., Inc. v. Fidesys Corp., N.V., 570 So. 2d 436, 437 (Fla. 5th DCA 1990) (determining that “any and [*5] all claims, demands, damages, actions, causes of action, or suits in equity, of whatsoever kind or nature” encompassed negligent action). A release need not list each possible manner in which the releasor could be injured in order to be effective. Cf. DeBoer v. Fla. Offroaders Driver’s Ass’n, Inc., 622 So. 2d 1134, 1136 (Fla. 5th DCA 1993).
The instant release contains two separate provisions releasing GKTW from liability. One provision releases GKTW from “any and all claims and causes of action of every kind arising from any and all physical or emotional injuries and/or damages which may happen to me/us . . . which may occur while staying at the Give Kids the World Village.” This language is markedly similar to the language in the release signed by the plaintiff in Cain, which encompassed the release of a negligence action. 932 So. 2d at 577. A second provision releases GKTW from “any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish . . . .” This language is broad enough to encompass negligence claims arising from the injuries suffered by Ms. Sanislo due to the collapse of the wheelchair lift.
The Sanislos argue that the release is not [*6] clear and unambiguous because it applies to liability arising “in connection with the preparation, execution and fulfillment of said wish.” They suggest the nature and scope of the wish is not clear or defined and thus renders the release unenforceable. However, the wish, which was requested by the Sanislos, clearly encompassed events at the Village related to their stay and attendance at Orlando area theme parks. The Sanislos’ interpretation is not likely the interpretation that an “ordinary and knowledgeable person” would give to the clause. See Raveson, 793 So. 2d at 1173. The language used clearly and unambiguously releases GKTW from liability for the physical injuries Ms. Sanislo sustained during her stay at the Village, and was sufficiently clear to make the Sanislos aware of the breadth of the scope of the release and what rights they were contracting away. [HN2] The ability to predict each and every potential injury is unattainable and is not required to uphold an exculpatory provision within a release.
[HN3] In addition to assessing the clarity of the language used in releases, this Court must consider the parties’ relative bargaining power in determining the enforceability of a release. [*7] Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205, 208 (Fla. 4th DCA 1973). Enforcement of an exculpatory clause has been denied where the relative bargaining power of the contracting parties is unequal and the clause seeks to exempt from liability for negligence the party who occupies a superior bargaining position. Id. However, Florida courts have held that the bargaining power of the parties will not be considered unequal in settings outside of the public utility or public function context. For instance, in Banfield v. Louis, 589 So. 2d 441, 443-44 (Fla. 4th DCA 1991), the court upheld the enforcement of a release executed by a participant in a triathlon and the trial court’s ruling that a disparity in bargaining power was “not applicable to entry of athletic contests of this nature, where a party is not required to enter it and not entitled to participate unless they want to.” The Banfield court emphasized that the application of Ivey Plants was limited to circumstances in which a release was executed on behalf of a public utility or a company serving some public function. Id. at 444-45. Consistent with this analysis, Florida courts have refused to find an inequality of bargaining [*8] power in recreational settings. Id.; DeBoer, 622 So. 2d at 1136. Similarly, in Hardage Enterprises, this Court found that an exculpatory clause in an agreement entered into by the owner of a hotel complex and a construction manager of the complex was enforceable because its language was unambiguous and the parties were not in a position of unequal bargaining power. 570 So. 2d at 438. This Court explained that the case did not present “a situation where public policy mandates the protection of consumers who are offered a contract in a ‘take it or leave it’ form.” Id. at 439.
GKTW argues that the bargaining power of the parties cannot be viewed as unequal, because the Sanislos voluntarily participated in the GKTW program. The Sanislos, for their part, argue that the parties are of unequal bargaining power because they were offered a contract in a “take it or leave it” form, and GKTW gave them no choice but to sign the release in order to have their daughter’s wish fulfilled. Unfortunately for the Sanislos, however, the instant case is more akin to Banfield and DeBoer than it is to Ivey Plants. The Sanislos’ desire to fulfill their ill daughter’s wish is certainly understandable, but the [*9] parents’ desire to fulfill the wish and take advantage of the GKTW program does not equate to unequal bargaining power. The Sanislos were not consumers as contemplated in Hardage Enterprises. They were provided a copy of the release at the time they applied to the Make-A-Wish Foundation and made a decision to waive certain rights. GKTW is entitled to enforcement of that release.
ORFINGER, C.J., and PALMER, J., concur.
COHEN, J., concurs and concurs specially with opinion.
CONCUR BY: COHEN
COHEN, J., concurring specially.
If I were writing on a clean slate, I would affirm the trial court’s denial of GKTW’s summary judgment. I am bound, however, to follow this Court’s prior decisions that do not require an express reference to negligence in a release in order to render the release effective to such actions. This District stands alone on this position. See Levine v. A. Madley Corp., 516 So. 2d 1101 (Fla. 1st DCA 1987); Van Tuyn v. Zurich Am. Ins. Co., 447 So. 2d 318 (Fla. 4th DCA 1984); Goyings v. Jack & Ruth Eckerd Found., 403 So. 2d 1144 (Fla. 2d DCA 1981); Tout v. Hartford Accident & Indem. Co., 390 So. 2d 155 (Fla. 3rd DCA 1980).
The better view is to require an explicit provision to that [*10] effect. Exculpatory clauses are “by public policy disfavored in the law because they relieve one party of the obligation to use due care, and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss.” Tatman v. Space Coast Kennel Club, Inc., 27 So. 3d 108, 110 (Fla. 5th DCA 2009). While those trained in the law might understand and appreciate that the general language releasing a party from any and all liability could encompass the injuries suffered by Ms. Sanislo, a release should be readily understandable so that an ordinary and knowledgeable person would know what is being contracted away. I would suggest that the average ordinary and knowledgeable person would not understand from such language that they were absolving an entity from a duty to use reasonable care. Conversely, a clause which provides a waiver of liability for one’s own negligence is easily understood. The other district courts of appeal have recognized how simple it is to add such a clause in a release. I suggest we do the same.
Sweeney v. City of Bettendorf, 762 N.W.2d 873; 2009 Iowa Sup. LEXIS 26
Tara Sweeney, Individually, and by Cynthia Sweeney, Her Mother and Next Friend, Appellants, vs. City of Bettendorf and Bettendorf Parks and Recreation, Appellees.
SUPREME COURT OF IOWA
762 N.W.2d 873; 2009 Iowa Sup. LEXIS 26
March 13, 2009, Filed
COUNSEL: Joseph C. Creen of Bush, Motto, Creen, Koury & Halligan, P.L.C., Davenport, for appellants.
Martha L. Shaff and Edward J. Rose of Betty, Neuman & McMahon, P.L.C., Davenport, for appellees.
JUDGES: APPEL, Justice. All justices concur except Cady, J., who dissents and Streit, J., who concurs in part and dissents in part. CADY, Justice (dissenting). STREIT, Justice (concurring in part and dissenting in part).
OPINION BY: APPEL
[*875] APPEL, Justice.
This case involves an appeal from a district court order granting the City of Bettendorf summary judgment in a negligent supervision case. Here, an eight-year-old girl was injured by a flying baseball bat at a minor league game while on a field trip sponsored by the Bettendorf Parks and Recreation Department. The district court found that a permission slip signed by the parent of the injured girl amounted to an enforceable anticipatory release of future claims against the City. The district court in the alternative ruled that the plaintiffs failed to introduce [**2] sufficient evidence to show that the City violated a duty of care owed to the plaintiffs. For the reasons expressed below, we affirm in part, reverse in part, and remand the case to the district court.
I. Background Facts and Prior Proceedings.
Eight-year-old Tara Sweeney enjoyed baseball games. She participated in field trips to Davenport, Iowa, sponsored by the Bettendorf Parks and Recreation Department to see minor league baseball games. In the past, according to Tara, the children sat in “comfy seats” behind home plate that were protected by screening.
In 2003, Tara wanted to go to another ball game. Prior to the field trip, Tara’s mother, Cynthia Sweeney, was asked to sign what was entitled a “Permission Slip,” which the Department required of all participants. The text of the “Permission Slip” was as follows:
I hereby give permission for my child Tara M. Sweeney to attend the Bettendorf Park Board field trip to John O’Donnell Stadium with the Playgrounds Program on Monday, June 30, 2003. I realize that the Bettendorf Park Board is not responsible or liable for any accidents or injuries that may occur while on this special occasion. Failure to sign this release as is without amendment [**3] or alteration is grounds for denial of participation.
Prior to signing the “Permission Slip,” Cynthia talked with a supervisor about the trip. She was told the times of the field trip and who would be supervising Tara’s group. She then executed and returned the permission slip to the Department.
At the game, the children did not sit in the “comfy seats” behind screening as they had in the past. Instead, Tara was required by the Department to sit on bleachers or the adjacent grassy area along the third base line that was unprotected by screening or netting. Tara chose a seat in the third or fourth row of bleachers. The Department supervisors did not allow the children to move to another location in the stadium.
At a midpoint in the game, a player lost his grip on a bat. The record indicated that the bat flew a distance of about 120 feet along the third base line at a height of approximately six feet. The bat was airborne for two or three seconds before it struck Tara on the right side of her head. Prior to being struck by the bat, Tara had turned to talk to a friend.
At the time of the incident, no supervisors from the Department were in Tara’s immediate vicinity. One supervisor who viewed [**4] the incident from a distance testified that an adult in the area could possibly have done something, either trying to knock down the bat or yelling for the kids to duck. Cynthia, at her deposition, however, testified that the incident could not have been avoided had an adult been in Tara’s place.
Plaintiffs sued the City and a number of other defendants, including the baseball player involved and the teams playing the [*876] game. The plaintiffs’ claims against the City sounded in negligence.
The City filed a motion for summary judgment asserting that the permission slip constituted a waiver of the plaintiffs’ claims and that, in any event, the plaintiffs could not show a breach of any duty of care owed by the City. With respect to the permission slip, the City noted that the language specifically states that a parent realizes that the “Bettendorf Park Board is not responsible or liable for any accidents or injuries that may occur while on this special occasion” and that “[f]ailure to sign this release” is “grounds for denial of participation.” On the issue of breach of duty, the City argued that there was nothing that the City should have done to avoid the accident.
Plaintiffs resisted and [**5] filed a cross motion for summary judgment. On the issue of waiver, the plaintiffs contended that the permission slip did not amount to a valid anticipatory release of future claims based upon the City’s negligent acts or omissions. The plaintiffs further argued that even if the permission slip amounted to a valid release, it was fatally flawed because it purported to release only the Department and not the City. Finally, plaintiffs asserted even if the permission slip amounted to an anticipatory release of future claims based on acts or omissions of negligence, statutory and common law public policy prevents a parent from waiving such claims on behalf of a minor child.
In resisting the City’s motion for summary judgment based upon the lack of a breach of duty, the plaintiffs, in addition to testimony of lay witnesses, offered a report from Susan Hudson, a professor at the University of Northern Iowa and an expert on playground and park safety. Based on her review, Hudson found that the Department breached its duty of care toward the plaintiffs in several ways. Hudson opined that the Department breached its duty of care by: (1) not informing the Sweeneys about the nature of possible [**6] harm even though Cynthia personally inquired about the nature of the activity; (2) not anticipating the known and foreseeable harm that could occur by not paying attention to the selection of seating; (3) not providing direct instructions to the children about paying attention to the possibility of bats and balls flying into the bleacher area; and (4) not providing direct supervision for children under their care.
The district court granted the City’s motion for summary judgment. The district court found that the permission slip constituted a valid waiver of plaintiffs’ claims. In the alternative, the district court found that the plaintiffs did not present sufficient evidence to establish a breach of duty owed to them. Plaintiffs appealed.
II. Direct vs. Interlocutory Appeal.
At the outset, there is a question of whether this case presents a direct appeal or is interlocutory in nature. [HN1] A direct appeal is heard as a matter of right, while this court has broad discretion to consider whether to hear an interlocutory appeal. Iowa R. App. P. 6.1(4). The central issue is whether an appeal of a district court order which dismisses all claims against one party in a negligence action involving [**7] multiple defendants is direct or interlocutory.
In Buechel v. Five Star Quality Care, Inc., 745 N.W.2d 732 (Iowa 2008), we considered this question. In Buechel, we noted that under our comparative fault statute, fault sharing cannot occur with a defendant who is no longer a party to the litigation through grant of summary judgment. Id. at 735; Spaur v. Owens-Corning Fiberglas Corp., 510 N.W.2d 854, 863 (Iowa 1994). As a [*877] result, the issues in the motion for summary judgment had impact on the issues of liability against the remaining defendants, are not severable, and are therefore interlocutory in nature. Buechel, 745 N.W.2d at 735. Nonetheless, as in Buechel, we exercise our discretion to treat the notice of appeal here as an application for interlocutory appeal, grant the application, and consider the underlying merits. Id. at 736.
III. Standard of Review.
[HN2] We review a district court’s order on a motion for summary judgment for correction of errors at law. Ratcliff v. Graether, 697 N.W.2d 119, 123 (Iowa 2005). [HN3] Summary judgment is appropriate when the moving party shows there is no genuine issue of material fact. Berte v. Bode, 692 N.W.2d 368, 370 (Iowa 2005). Summary judgment should not [**8] be granted if reasonable minds can differ on how a material factual issue should be resolved. Walker v. Gribble, 689 N.W.2d 104, 108 (Iowa 2004).
A. Permission Slip as Anticipatory Release of Claims of Negligence. This case involves an exculpatory provision contained in a permission slip signed by the parent of a minor child in connection with recreational activities sponsored by a municipality. 1 The validity of exculpatory provisions which release future claims in connection with recreational activities is a topic that has been thoroughly explored in the academic literature. See, e.g., Mary Ann Connell & Frederick G. Savage, Releases: Is There Still a Place for Their Use by Colleges & Universities?, 29 J.C. & U.L. 579 (2003); Mark Seiberling, “Icing” on the Cake: Allowing Amateur Athletic Promoters to Escape Liability in Mohney v. USA Hockey, Inc., 9 Vill. Sports & Ent. L.J. 417 (2002). The academic commentators note courts considering such exculpatory provisions deal with the inherent tensions between the law of torts, which generally requires parties to be responsible for their acts of negligence, and the law of contracts, which allows a competent party to make his [**9] or her own agreements. Connell & Savage, 29 J.C. & U.L. at 580; Seiberling, 9 Vill. Sports & Ent. L.J. at 428.
1 [HN4] While many cases appear to use the terms interchangeably, an exculpatory provision is similar but not identical to an indemnity provision. An indemnity provision ordinarily allocates risks of third party losses among parties to a contract. In an indemnity context, at least one party remains liable for the third party losses. The victim thus still has a source of recovery. An exculpatory provision, however, does not allocate risk between responsible parties but eliminates liability all together. Cathleen M. Devlin, Indemnity & Exculpation: Circle of Confusion in the Courts, 33 Emory L.J. 135, 170-71 (1984).
The early Iowa cases dealing with exculpatory provisions involve real estate contracts. As early as 1921, we considered the effect of a provision in a real estate lease that provided that in no case should the lessor be liable for damage to the property. Oscar Ruff Drug Co. v. W. Iowa Co., 191 Iowa 1035, 181 N.W. 408 (1921). Among other things, we noted that the clause in the lease was couched in general terms and did not specifically exempt the lessor from liability for [**10] its own negligent acts. Id. at 1042, 181 N.W. at 411. As a result, we held that the lease did not release the lessor from damages resulting from the lessor’s own negligence. Id. at 1043, 181 N.W. at 412.
More than thirty-five years later, we considered the effect of provisions in a real estate lease which the tenant claimed relieved the tenant from liability for a fire that was allegedly caused by its own negligence. Sears, Roebuck & Co. v. Poling, [*878] 248 Iowa 582, 81 N.W.2d 462 (1957). The lease in Sears, among other things, obligated the tenant to keep the premises in good condition, “loss by fire . . . excepted.” Id. at 586, 81 N.W.2d at 464. While this contractual provision might have had a bearing on fire losses not caused by the tenant’s negligence, we held that the general exculpatory language did not immunize the tenant from liability for damage to the landlord’s premises caused by its own negligence. Id. at 589, 81 N.W.2d at 466. In reaching this determination, we cited with approval an annotation stating that [HN5] “broad exculpatory provisions” would rarely immunize a defendant for acts of affirmative negligence. Id. at 588, 81 N.W.2d at 465 (citation omitted). We further cited with [**11] approval Oscar Ruff Drug and cases from other jurisdictions holding that contract provisions will not be held to relieve a party of liability for its own negligence unless the intention to do so is clearly expressed. Id. at 591-92, 81 N.W.2d at 467-68; see Oscar Ruff Drug, 191 Iowa at 1035, 181 N.W.2d at 408; see also Fields v. City of Oakland, 137 Cal. App. 2d 602, 291 P.2d 145, 149 (Cal. Ct. App. 1955); Winkler v. Appalachian Amusement Co., 238 N.C. 589, 79 S.E.2d 185, 190 (N.C. 1953); Carstens v. W. Pipe & Steel Co., 142 Wash. 259, 252 P. 939, 941 (Wash. 1927).
Following Sears, we decided Baker v. Stewarts’ Inc., 433 N.W.2d 706 (Iowa 1988), a case outside the real estate setting. In Baker, we considered the validity of a document signed by a plaintiff who claimed that hair straightening products applied to her scalp at a cosmetology school produced subsequent baldness. Baker, 433 N.W.2d at 707. The document stated in relevant part, “I will not hold the Stewart School, its management, owners, agents, or students liable for any damage or injury, should any result from this service.” Id.
In Baker, we held that this document did not amount to an anticipatory release of future claims based upon negligent acts or omissions of the professional [**12] staff of a cosmetology school because a release of such claims would not be apparent to a casual reader. Id. at 709. We cited Sears and dicta in the indemnity case of Evans v. Howard R. Green Co., 231 N.W.2d 907, 916-17 (Iowa 1975), for the proposition that [HN6] general exculpatory provisions do not cover the negligence of a party unless the intention to do so is clearly expressed. Id. In other words, the general exculpatory provision in Baker, which stated that the customer would not hold “management, owners, agents or students liable for any damage or injury,” was insufficient to release the defendant from liability for the negligent acts of its professional staff. Id.
In contrast, in Huber v. Hovey, 501 N.W.2d 53, 56 (Iowa 1993), we held that a document signed by a spectator to an auto race did amount to an enforceable anticipatory release of future claims based on negligent acts or omissions of a party. In Huber, the document in question emphasized that it was a “covenant not to sue” and that it “releases” the promoter “from all liability . . . [for] all loss or damage, and any claim . . . on account of injury . . . whether caused by the negligence of the releasees or otherwise. . . [**13] .” 501 N.W.2d at 54. We distinguished this language from the sort utilized in Baker, noting that the document specifically indicated that it was a release of claims caused by the negligence of one of the parties. Id. at 56; see also Grabill v. Adams County Fair & Racing Ass’n, 666 N.W.2d 592 (Iowa 2003).
The permission slip in this case is much closer to the document in Baker than in Huber. As in Baker, the permission slip contains no clear and unequivocal language that would notify a casual reader that by signing the document, a parent [*879] would be waiving all claims relating to future acts or omissions of negligence by the City. Baker, 433 N.W.2d at 707. The language at issue here refers only to “accidents” generally and contains nothing specifically indicating that a parent would be waiving potential claims for the City’s negligence. See Alliant Energy-Interstate Power & Light Co. v. Duckett, 732 N.W.2d 869, 878 (Iowa 2007) (holding a utility tariff that released utility from “all claims, demands, costs, or expenses for injury . . . or damage” was not sufficient to release utility from its own negligent acts). As noted in a recent best seller, [HN7] the term “accident” normally means “unpreventable [**14] random occurrences.” See Marc Gernstein with Michael Ellsberg, Flirting with Disaster: Why Accidents are Rarely Accidental 3 (2008). The general language in this permission slip simply does not meet the demanding legal standards of our Iowa cases.
While we have not previously considered the effect of exculpatory provisions in the specific context of sponsored recreational activities, we see no basis for departing from the Baker-Huber principles in this context. The cases from other jurisdictions demonstrate the reluctance of courts to provide defendants who sponsor recreational activities a more lenient framework for analyzing exculpatory clauses seeking to limit liability for the sponsors’ own negligence. Several state courts in a recreational context have adhered to a bright-line test, requiring that the specific words negligence or fault be expressly used if an exculpatory provision is to relieve a defendant from liability for its own negligent acts or omissions. See Alack v. Vic Tanny Int’l of Mo., Inc., 923 S.W.2d 330, 337 (Mo. 1996) (noting general exculpatory language releasing “any . . . injuries” and “all claims” does not suffice to release party of its own negligence, because [**15] such language creates a latent ambiguity in exculpatory contracts); Geise v. Niagara County, 117 Misc. 2d 470, 458 N.Y.S.2d 162, 164 (Sup. Ct. 1983) (holding words “fault” or “neglect” must be used to bar claim for party’s own negligence).
Other courts in the context of recreational activities have not required magic words, but have imposed a demanding requirement that the intention to exclude liability for acts and omissions of a party must be expressed in clear terms. Sirek v. Fairfield Snowbowl, Inc., 166 Ariz. 183, 800 P.2d 1291, 1295 (Ariz. Ct. App. 1990) (requiring intention to immunize for negligent acts be clearly and explicitly stated); Turnbough v. Ladner, 754 So. 2d 467, 470 (Miss. 1999) (finding general exculpatory provision inadequate and noting release of acts of a party’s own negligence must be expressed in “specific and unmistakable terms”); Gross v. Sweet, 49 N.Y.2d 102, 400 N.E.2d 306, 309-10, 424 N.Y.S.2d 365 (N.Y. 1979) (noting that while the word “negligence” need not specifically be used, words conveying a similar import must appear). 2 The approach of these cases is [*880] consistent with the approach in Iowa exculpatory clause cases generally. See Baker, 433 N.W.2d at 709 (requiring a clear and unequivocal expression). We see no reason [**16] to relax from the approach in Baker merely because this case involves a recreational activity.
2 Even in these jurisdictions, the better practice is to expressly use the term “negligence” in the exculpatory agreement. See Swartzentruber v. Wee-K Corp., 117 Ohio App. 3d 420, 690 N.E.2d 941, 945 (Ohio Ct. App. 1997) (noting that the “better practice” would be to expressly include the word “negligence”); Dobratz v. Thomson, 161 Wis. 2d 502, 468 N.W.2d 654, 663 (Wis. 1991) (refusing to adopt a magic words test, but noting the use of term “negligence” would be “very helpful”); see also Steven B. Lesser, How to Draft Exculpatory Clauses That Limit or Extinguish Liability, 75 Fla. B.J. 10, 14 (Nov. 2001) (noting from a practical standpoint, utilization of the word “negligence” should increase the likelihood of enforcement); Kevin G. Hroblak, Adloo v. H.T. Brown Real Estate, Inc.: “Caveat Exculpator”–An Exculpatory Clause May Not Be Effective Under Maryland’s Heightened Level of Scrutiny, 27 U. Balt. L. Rev. 439, 469 (1998) (noting a risk adverse drafter should use the word “negligence” in all exculpatory clauses).
In looking at cases involving recreational activities, language similar to that used by the City in this case has been [**17] found insufficient to support a release of a party’s own negligence. For example, in Doyle v. Bowdoin College, 403 A.2d 1206, 1208 (Me. 1979), the court found the use of the term “accidents” insufficient to provide a basis for release from a party’s own negligence. See Hroblak, 27 U. Balt. L. Rev. at 471 (noting drafter should not seek to release party from any “accidents” because the term is ambiguous and insufficient to release own negligent acts); see also O’Connell v. Walt Disney World Co., 413 So. 2d 444, 446-47 (Fla. Dist. Ct. App. 1982) (finding language stating company held harmless from liability and from risks inherent in riding activity not sufficient to release its own negligence); Calarco v. YMCA of Greater Metro. Chicago, 149 Ill. App. 3d 1037, 501 N.E.2d 268, 272-73, 103 Ill. Dec. 247 (Ill. App. Ct. 1986) (holding provision to hold YMCA “free from any and all liability” and discharging “any and all rights and claims for damages” not sufficient to relieve YMCA of liability for its own negligence).
For the reasons expressed above, we hold that the language in the permission slip in this case does not constitute an enforceable anticipatory release of claims against the City for its negligent acts or omissions in [**18] connection with the field trip. 3
3 As a result of our disposition of the release issue, we do not consider four other arguments advanced by the plaintiffs. First, we do not consider whether the failure to specifically name the City in the release prevents its enforcement by the City. Second, we also do not address the question of whether a parent may release the claims of a minor for the negligent acts or omissions of a sponsor of recreational events. The case law from other jurisdictions is divided on this issue. Compare Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381, 389-90 (N.J. 2006), with Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201, 205 (Ohio 1998). See generally Doyice J. Cotten, Sarah J. Young, & Sport Risk Consulting, Effectiveness of Parental Waivers, Parental Indemnification Agreements, & Parental Arbitration Agreements as Risk Management Tools, 17 J. Legal Aspects Sport 53 (2007). Third, we do not consider the implications on this case, if any, of Iowa Code section 599.2 (2003), which allows a minor to disaffirm contracts with certain exceptions. Fourth, we do not consider the general question of whether public policy voids a contract provision releasing claims of negligence [**19] under the circumstances presented here. See Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 446-47 (Cal. 1963).
B. Application of Inherent Risk Doctrine to Defeat Negligent Supervision Claim. The City, while acknowledging that it owed Tara a duty of care, seeks to limit that duty through the application of the inherent risk doctrine. The City claims that the risk of being injured by flying bats and balls when seated outside screening is unavoidable as it is an inherent part of attending a baseball game. As a result, the City claims, it had no duty to protect Tara from the subsequent injuries. [HN8] The question of the proper scope of legal duty is a question of law to be determined by the court. J.A.H. ex rel. R.M.H. v. Wadle & Assocs., P.C., 589 N.W.2d 256, 258 (Iowa 1999); Leonard v. State, 491 N.W.2d 508, 511-12 (Iowa 1992).
In support of its position, the City cites Anderson v. Webster City Community School District, 620 N.W.2d 263 (Iowa 2000). In Anderson, a seven-year-old boy broke his leg while sledding during a noon recess at his elementary school. [*881] Anderson, 620 N.W.2d at 265. The jury instruction in that case noted that some risks naturally attend participation in recreational activities [**20] and that the sponsor has a duty only to protect a participant from unreasonable risks of harm. Id. at 266. The Anderson court noted that the instruction was similar to the “primary assumption of risk doctrine” which, while no longer utilized in Iowa, was an alternative expression for the proposition that a defendant is not negligent or owed no duty for risks inherent in certain activities. Id. at 267.
The City also cites Dudley v. William Penn College, 219 N.W.2d 484 (Iowa 1974), in support of its motion for summary judgment. In Dudley, a plaintiff baseball player, who was hit by a foul ball, claimed that the college should have had dugouts or netting protecting the participants from the playing field. 219 N.W.2d at 485. We rejected that claim, noting that the duty that was owed extended only to those risks that were unreasonable. Id. at 486-87. “[P]layers in athletic events accept the hazards which normally attend the sport.” Id. at 486. As a result, we held that the injured player did not have a cause of action against the coach and college. Id. at 487. In sum, the City argues that it did not breach its duty of care because being struck by a bat is an inherent risk of attending a [**21] minor league baseball game.
Plaintiffs view the case differently. They distinguish Anderson on the ground that the City had a much greater control over the activities of the children in this case. They note that the City determined that Tara would sit on bleachers unprotected by screening and that the City chose not to follow accepted recreational and leisure standards for the proper safety and supervision of children by failing to ensure direct supervision and by failing to warn them and their parents of the danger of flying bats when sitting in unprotected areas. The plaintiffs further note that in Anderson, whether the defendants unreasonably failed to protect the plaintiff was a question for the jury to decide.
The plaintiffs assert Dudley is inapposite. They see Dudley as a variant of the limited liability rule which relieves baseball park owner-operators of responsibility for flying objects. Here, however, the question on appeal relates not to the duty of the owner-operator of a baseball facility, but to the duty of the City to properly supervise Tara while attending the game. The City, plaintiffs argue, directed Tara to sit in an unprotected area and then did not provide adequate [**22] direct supervision in that area. Further, plaintiffs argue that their expert provided a sufficient basis for a jury to determine that the City acted unreasonably under all the facts and circumstances.
In the majority of cases, spectators sitting outside protective netting at baseball stadiums have been unable to recover from owners or operators for injuries related to errant bats and balls on the ground that such injuries were an “inherent risk” of attending the game. See generally James L. Rigelhaupt, Jr., Annotation, Liability to Spectator at Baseball Game Who is Hit by Ball or Injured as Result of Other Hazards of Game, 91 A.L.R.3d 24 (1979). Claims against owners or operators for injuries incurred by flying bats and balls that have been decided after the movement toward comparative negligence tend to characterize nonliability as based on a “limited duty” theory. See, e.g., Vines v. Birmingham Baseball Club, Inc., 450 So. 2d 455, 456 (Ala. 1984) (Torbert, C.J., concurring specially); Lawson v. Salt Lake Trappers, Inc., 901 P.2d 1013, 1015-16 (Utah 1995); Perez v. McConkey, 872 S.W.2d 897, 900 (Tenn. 1994); Daniel E. Wanat, Torts and Sporting Events: Spectator [*882] & Participant Injuries–Using [**23] Defendant’s Duty to Limit Liability as an Alternative to the Defense of Primary Implied Assumption of Risk, 31 U. Mem. L. Rev. 237 (2001).
Regardless of whether the approach is characterized as involving inherent risk or a limited duty, courts applying the doctrine have held that the owner or operator of a baseball stadium is not liable for injury to spectators from flying bats and balls if the owner or operator provided screened seating sufficient for spectators who may be reasonably anticipated to desire such protection and if the most dangerous areas of the stands, ordinarily the area behind home plate, were so protected. Quinn v. Recreation Park Ass’n, 3 Cal. 2d 725, 46 P.2d 144, 146 (Cal. 1935); Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 424 N.E.2d 531, 533-34, 441 N.Y.S.2d 644 (N.Y. 1981). In Arnold v. City of Cedar Rapids, 443 N.W.2d 332, 333 (Iowa 1989), we adopted a version of the limited duty rule in a premises liability case with respect to misthrown balls. 4
4 There has been some resistance to inherent risk or the limited duty doctrine. For example, Professor James noted long ago that the primary assumption of risk doctrine, of which the limited duty rule is a variant, provides “an exceptional curtailment of defendant’s [**24] duty below the generally prevailing one to take care to conduct oneself so as not to cause unreasonable danger to others.” Fleming James, Jr., Assumption of Risk, 61 Yale L. J. 141, 168 (1952). More recently, a few judges have directly challenged the limited duty rule. See Maisonave v. Newark Bears Prof’l Baseball Club, Inc., 185 N.J. 70, 881 A.2d 700, 710-13 (N.J. 2005) (Wallace, J., concurring), superseded by statute, New Jersey Baseball Spectator Safety Act of 2006, N.J. Stat. Ann. § 2A:53A-43-48 (2006); Akins, 424 N.E.2d at 536 (Cooke, J., dissenting). There appears to be a move within the legal profession away from the rule. See Restatement (Third) of Torts: Apportionment of Liability § 3 cmt. c, illus. 6, at 32-33 (2000) (replacing limited duty with comparative fault in cases involving injury to baseball spectators). In addition, recent academic commentary has challenged the doctrine. David Horton, Rethinking Assumption of Risk & Sports Spectators, 51 UCLA L. Rev. 339, 366 (2003) (noting increasingly hazardous nature of stadium seating in light of increased pitching speeds, greater batting capability, and stadium design that places patrons in a zone of danger); Gil Fried & Robin Ammon, Baseball [**25] Spectators’ Assumption of Risk: Is it “Fair” or “Foul”?, 13 Marq. Sports L. Rev. 39, 61 (2002) (same). There is no occasion on this appeal to revisit the application of inherent risk or limited duty doctrine in the context of a premises liability claim.
This case, however, does not involve a premises liability claim against the owner or operator of a baseball stadium. Instead, the issue is whether the district court erred in granting summary judgment in a negligent supervision case against the City based on its view that the injury was due to “an inherent risk in attending the baseball game.”
We conclude that the district court erred in granting summary judgment based on inherent risk. [HN9] A negligent supervision case is fundamentally different than a case involving premises liability. The eight-year-old child in this case made no choice, but instead sat where she was told by the Department. The plaintiffs further claim that there was inadequate adult supervision where the child was seated. The alleged negligence in this case does not relate to the instrumentality of the injury, but instead focuses on the proper care and supervision of children in an admittedly risky environment. See, e.g., [**26] Stanley v. Bd. of Educ., 9 Ill. App. 3d 963, 293 N.E.2d 417, 422 (Ill. App. Ct. 1973) (holding alleged negligent supervision of children in thrown bat case raises jury question in light of expert opinion); Cook v. Smith, 33 S.W.3d 548, 553-54 (Mo. Ct. App. 2000) (noting acceptance of custody and care of minor child creates duty of care independent of premises liability); Havens v. Kling, 277 A.D.2d 1017, 1018, [*883] 715 N.Y.S.2d 812 (N.Y. App. Div. 2000) (holding parents of eleven-year-old inexperienced golfer did not have claim against twelve-year-old golfer who hit son on the head with club, but did have claim against golf shop and event sponsor for negligent supervision); Gordon v. Deer Park Sch. Dist. No. 414, 71 Wn.2d 119, 426 P.2d 824, 828 (Wash. 1967) (finding possible negligence claim where bat slips from hands of teacher).
Viewed as a negligent supervision case, the City had a duty to act reasonably, under all the facts and circumstances, to protect the children’s safety at the ball park. City of Cedar Falls v. Cedar Falls Cmty. Sch. Dist., 617 N.W.2d 11, 16-17 (Iowa 2000). The gist of the plaintiffs’ claim is that a substantial cause of the injury was the supervisors’ decision to allow the children, who cannot be expected to be vigilant [**27] at all times during a baseball game, to be seated in what a jury could conclude was an unreasonably hazardous location behind third base instead of behind the safety of protective netting. From this perspective, the inevitable exposure of the children to flying balls and bats that arises from sitting outside the range of protective netting does not provide a complete defense, but instead is a factor for a jury to consider in determining whether the acts and omissions of the supervisors were reasonable under all the facts and circumstances. As in Anderson, moreover, [HN10] whether a defendant has breached its duty of care under all the circumstances is ordinarily a jury question, particularly where the plaintiff has offered expert testimony indicating that the defendant did not follow customary practices for the safety of children when engaged in recreational activities. Anderson, 620 N.W.2d at 266-67.
As a result, the City is not entitled to summary judgment with respect to the specifications of negligence in the plaintiffs’ expert report on the ground of “inherent risk” or the “limited duty doctrine.” [HN11] The extent to which an injured party knowingly engages in risky behavior in a negligent [**28] supervision case is a factor for the fact finder to consider in the framework of comparative fault.
C. Cause in Fact Challenge to Claim of Lack of Direct Supervision. The City also advances an alternate argument in partial defense to some aspects of the plaintiffs’ negligent supervision claim. To the extent that the plaintiffs’ case rested on the failure to have adult supervision in close proximity to Tara when the children were seated along the third base line, the City argued that such direct supervision would not have made a difference. The City’s argument amounts to a claim that even if the City breached its duty toward Tara by not providing adequate adult supervision, that breach of duty was not the cause of Tara’s injuries.
We have held that [HN12] causation has two components: cause in fact and legal cause. Faber v. Herman, 731 N.W.2d 1, 7 (Iowa 2007). Cause in fact is a but-for test, while determination of legal or proximate cause reflects a policy judgment that the cause of the accident is not so remote or attenuated that liability should not be imposed. Id. Ordinarily, determination of cause in fact is a question for the fact finder to determine. Id.
Conceding for purposes of summary [**29] judgment that the City had a legal duty to reasonably supervise its charges, and further assuming that the City breached its duty of reasonable care by failing to provide direct supervision to the children in a ratio of one adult for ten children as suggested by plaintiffs’ expert, the alleged breach of duty cannot satisfy the “but-for” element of proximate cause for Tara’s injuries [*884] as a matter of law. Although whether a breach of duty was a cause in fact of injuries sustained by the plaintiff is ordinarily a fact question, the evidence in this case, even when viewed in the light most favorable to the plaintiff, does not establish a triable issue.
[HN13] In order to establish cause in fact, the plaintiff need not show certainty or inevitability, but the plaintiff must offer something beyond mere conjecture and speculation. Easton v. Howard, 751 N.W.2d 1, 6 (Iowa 2008) (quoting George v. Iowa & S.W. Ry. Co., 183 Iowa 994, 997-98, 168 N.W. 322, 323 (1918)). A plaintiff must offer sufficient evidence for a fact finder to conclude by a preponderance of evidence that the injuries that occurred would likely have been avoided absent the breach of duty. Mere guesswork about what might have occurred [**30] is not enough.
Here, the evidence simply is not sufficient to allow a reasonable fact finder to conclude that in all likelihood the injuries to Tara would have been avoided if the City would have provided the direct adult supervision as urged by plaintiffs’ expert. Even if the City provided direct supervision in the ratio of one adult for every ten children, there no is reason to believe that an adult supervisor would likely have been able to knock down the bat or warn Tara effectively to avoid injury.
In order to block the flying bat, the supervisor would have had to have seen the bat leave the hands of the batter and would have had to have sufficient presence and verve to thrust himself or herself into harm’s way to knock down the projectile. This scenario is improbable enough, but there is also no reason to believe that a supervisor would have been sitting in sufficiently close proximity to be physically able to knock down the bat. In short, the City could have met the plaintiffs’ expert’s standard for direct supervision without affecting the outcome of this tragic affair.
Perhaps realizing the difficulties of persuading a fact finder that a fortuitous courageous block would have occurred [**31] but for the breach of duty, the plaintiffs fall back on a warning theory. While an adult seated in the vicinity of Tara would have been in a position to provide a louder and more direct warning to her than a supervisor at a greater distance, a reasonable fact finder could not conclude that the accident would have likely been avoided if there was direct supervision as suggested by plaintiffs’ expert. The errant bat in this case did not fly like a helicopter seed dropping from some tree, but rapidly ripped through the air at a low elevation to its unhappy destination. Under these facts, it is anyone’s guess as to whether a sharp verbal warning, even if immediately given, would have done the job. We therefore hold that plaintiffs have failed to generate a fact question on the proposition that enhanced direct supervision would have provided sufficient warning to Tara to avoid the injuries.
Our ruling on the issue of cause in fact is consistent with the case law in a number of other jurisdictions that have considered the issue in the context of flying balls and bats. 5 Further, our decision, though disappointing perhaps, will not come as a total shock to the plaintiffs. Tara’s mother testified [**32] in this case that there was nothing a supervisor sitting in the vicinity could have done to avoid Tara’s injuries. [*885] We do not regard Tara’s mother’s testimony as a binding admission, but the observation is obviously consistent with our conclusion that the evidence does not establish a triable issue of cause in fact on the ground of lack of direct supervision. Cf. Meyer v. Mulligan, 889 P.2d 509, 516 (Wyo. 1995) (noting that lay people are generally not competent to pass judgment on legal questions, including cause).
5 See, e.g., Benedetto v. Travelers Ins. Co., 172 So. 2d 354, 355 (La. Ct. App. 1965) (finding no amount of supervision could have altered manner in which bat was thrown); Lang v. Amateur Softball Ass’n of Am., 1974 OK 32, 520 P.2d 659, 662 (Okla. 1974) (finding no triable issue in wild pitch case where it was not reasonably apparent that injuries suffered were caused by wrongful act).
The permission slip in this case did not release the City from alleged acts of future negligence. Further, the doctrine of inherent risk does not provide a basis to defeat the plaintiffs’ theories of negligence in this case. To the extent the plaintiffs argue that the City breached its duty [**33] of care by failing to provide direct supervision to the children once they were seated along the third base line at the ball park, we conclude that the plaintiffs failed as a matter of law to adduce sufficient evidence to raise a triable issue. To this extent, the City is entitled to summary judgment in this case. As a result, the district court’s grant of summary judgment is affirmed in part and reversed in part.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
All justices concur except Cady, J., who dissents and Streit, J., who concurs in part and dissents in part.
CONCUR BY: STREIT (In Part)
DISSENT BY: CADY; STREIT (In Part)
CADY, Justice (dissenting). STREIT, Justice (concurring in part and dissenting in part).
I respectfully dissent. My departure from the decision of the majority is based on two principal reasons, both tied by a common thread. This common thread is woven with the clear understanding that a baseball game–America’s pastime–presents a known, but acceptable, threat of harm to spectators. This threat, of course, comes from baseballs and, on very rare occasions, bats or broken pieces of bats that enter the spectator area from the playing area. While these objects become coveted possessions [**34] for spectators of all ages, they are at the same time an inherent danger of attending the game. This danger is the basis for the lawsuit in this case, which I believe should be thrown out by a call made with relative ease.
I. Release of Liability.
First, I believe the release of liability signed by the parents of the child hit by the baseball bat in this case was valid and prevents the parents from suing. The majority, of course, concludes the release was insufficient to cover the particular claim of negligent supervision brought against the city parks and recreation department, who organized the field trip to the ballgame. I agree the release would not cover the full range of injuries a child could reasonably be expected to encounter during a supervised field trip to a professional baseball park, but I believe it at least covered the very obvious and common danger associated with watching a baseball game–the very purpose of the field trip–that any reasonable parent would have understood and contemplated when deciding to permit their child to attend a baseball game.
The majority seems to construct a rule that invalidates all but the most sophisticated and carefully drawn releases by [**35] focusing on the general principle of law that agreements to release a party from liability for his or her own negligence are disfavored. Yet, this broad principle is not a working rule of law and has given way to the more pragmatic, specific rule that a release must clearly identify to a casual reader those claims or injuries covered under the release. Baker v. Stewarts’ Inc., 433 N.W.2d 706, 709 (Iowa 1988). Importantly, a release does not need to specifically mention a party’s “own negligence” to be valid. In proper context, [*886] most releases could only have meaning as applied to common claims of negligence. Instead, the inclusion of such language merely helps remove any doubt that the release intended to cover any circumstance under the umbrella of negligence. Yet, the critical inquiry is whether the incident claimed to be covered under the release was unambiguously identified to a casual reader.
For example, in Baker a release of “liability for any damage or injury” between a cosmetology school and a patron of services performed by students at the school did not cover an injury to the hair and scalp of the patron that was the subject of a negligence claim for liability against the professional [**36] staff who supervised the student services. Id. The language of the release failed to “clearly and unequivocally” express to a casual reader of the release that it included professional staff in the release of liability. Id. We did not totally invalidate the release as too vague due to the absence of any specific mention of negligence, but only found the language of the release was not broad enough to include professional staff. Id. A patron of the cosmetology school would not understand that he or she was releasing the professional staff from liability by casually reading the release. Id. Similarly, in Huber v. Hovey, 501 N.W.2d 53, 54 (Iowa 1993), we were presented with a release of “all liability” for any claim of injury “whether caused by the negligence of the releasees or otherwise.” The release was between a racetrack and spectators who entered the pit area of the racetrack, and we found the release did cover a spectator who entered the pit area and was injured when a wheel of a race car came off and struck the spectator. Id. at 56-57. In response to the argument that the language of the release did not sufficiently identify the accident, we found the release covered the claim [**37] because it clearly identified the parties to the release, including spectators who entered the pit area, and clearly covered personal injuries to spectators who entered the pit area. Id. Under the circumstances, a casual signer of the racetrack release would understand that the injuries referred to in the release included injuries associated with car racing that could be expected to occur in the pit area. We did mention the release specifically covered injuries caused by the track’s own negligence, but only to further clarify that the release covered a broad range of personal injuries to spectators. The use of the term “negligence” in the release only helped clarify the broad type of injuries covered. It was not a predicate to covering any injury.
Overall, the Baker-Hovey approach considers the context and subject of a release between the parties and the language expressed in the release and looks to consider whether a casual signer would understand the injury or incident at issue was unambiguously covered. In this case, the language of the release may not cover a broad range of injuries that could be sustained by children who go on a field trip to a baseball park. For example, the [**38] release did not express the notion that injuries during the transportation of the children would be covered. The subject of the release was a baseball game, and a parent signing the release would likely not have transportation in mind without some specific identification or reference to the transportation component of the field trip. However, the release did have meaning, and that meaning was the city would at least not be liable for those inherent injuries known to occur to spectators of a baseball game–the subject of the release. The release clearly identified the baseball stadium as the subject of the trip and stated the city would not be “liable for any accidents.” At a minimum, any parent [*887] signing the release would understand that those accidents known to occur to spectators were contemplated under the release of liability.
II. No Duty of Care.
There is a second, more fundamental, reason the case should be dismissed. This reason is the city had no duty to protect the children at the baseball park from the inherent risks of the game of baseball as the children sat in their seats watching the game being played.
I completely agree the city had a duty to supervise the children throughout [**39] the field trip and to generally protect the children from reasonably foreseeable harm. However, the creation of a duty of care and the scope of the duty created are always questions of law. Courts have drawn a line on the scope of a duty of care to protect spectators of a baseball game at a baseball park. That line is roughly drawn in an area behind home plate. This area is where spectators need the most protection from foul balls, or perhaps an occasional wild throw. Protection is most needed in this area because the risk of harm to spectators is most foreseeable in this area of a baseball park. Thus, courts have consistently imposed a duty of care on baseball parks to protect spectators from balls entering the spectator area, and baseball parks have responded to this duty by installing protective netting in the area behind home plate.
Of course, protective netting could easily be installed around the entire perimeter of the playing field, which would provide a consistent level of full protection for all spectators in all areas of the baseball park. Yet, courts have almost universally rejected such a notion as a legal duty, driven largely by public policy, which is normally a major [**40] component in deciding to create any duty of care. Thus, baseball parks have only a limited duty to spectators, and this duty is to protect spectators behind the area of home plate from foul balls. There is no duty to protect spectators in other areas of the baseball park, even though a foreseeable risk of harm continues to exist for spectators. Yet, this gap in protection comes into play due to public policy. Spectators want some limited protection from the inherent risks of attending a baseball game, but they also attend the game for the chance to catch a foul ball or a home run ball. This is a time-honored tradition, deeply imbedded into the game itself and the American culture. It is as much a part of the game as the game itself and has become an inherent but acceptable danger for spectators.
The majority throws a knuckleball in an effort to dance around this culture and the supporting legal principles by relying on the general duty of supervision as a separate, more demanding area of tort law. It holds that supervisors of children have a greater duty of care to protect child spectators from the inherent risks of watching a baseball game than the owner of the ballpark by requiring [**41] adult supervisors to place children in seats that are reasonably protected from the inherent risks. Put another way, the majority essentially declares an adult supervisor can commit negligence by allowing a child to sit in an area of the ballpark outside the protective netting. 6 This approach by the majority is [*888] scuffed and flawed. Most noticeably, it has no support in the application of the factors that go into the imposition of any duty of care and is detached from the traditions and expectations of the game of baseball.
6 It might be argued that the majority does not actually hold children must be seated behind the netting, but instead could be seated in those areas unprotected by netting that are not unreasonably exposed to the inherent risks of the sudden presence of flying objects. In other words, the majority believes the area of Tara’s seat in this case–thirty feet beyond third base, three or four rows into the spectator area–was an “unnecessarily hazardous location.” There was, of course, no evidence to support such a proposition, and such a proposition is contrary to the accepted configuration of a baseball stadium. This configuration recognizes the unreasonably hazardous [**42] area is behind home plate, which supports a duty of the owner of the ballpark to install protective netting around the area of home plate. Moreover, any spectator who has attended a professional baseball game or two knows that a sharply hit line drive off the bat of a professional baseball player that hooks foul can make any spectator location in the path of the ball, for a split second, hazardous. This hazard is the same whether a spectator is seated thirty feet beyond third base, 130 feet beyond third base, or even 230 feet beyond third base. It is simply of no avail to attempt to distinguish between areas of reasonable hazards outside the area protected by netting and areas of unreasonable hazards outside the area protected by netting. Spectators at a professional baseball game are exposed to inherent dangers most anywhere outside the area protected by netting, and it is a danger society has chosen, until this case, to accept.
At the outset, it must be acknowledged that, from a legal standpoint, this case is not merely about a flying bat. If it was, there could be no liability imposed on the city park and recreation department because a flying bat is too unforeseeable to give rise [**43] to a legal duty of care to protect a spectator. That is, it is not reasonably foreseeable to spectators that a flying bat will leave the playing field of a baseball park and enter the spectator area, especially an area thirty feet beyond third base. While the field trip organizers were charged with the responsibility to protect the children during the trip, a flying bat could not have been reasonably anticipated by the trip organizers as a potential harm to the children as they sat in the area of the ballpark beyond third base. Even on those rare occasions when a bat slips from the hands of a batter while attempting to hit a pitched ball, the bat will most likely travel in the direction of the playing field, not 120 feet into the spectator area. It is an extremely rare event for spectators outside the playing area to be placed in the zone of danger of a flying bat, especially a spectator located 120 feet down the third base spectator area. Consequently, no duty of care could be imposed to protect another against such specific, remote harm.
Nevertheless, the law does not impose a duty of care based on the foreseeability of a specific means of injury. See Nachazel v. Miraco Mfg., 432 N.W.2d 158, 160 (Iowa 1988) [**44] (“In negligence cases it is not necessary to a defendant’s liability that the wrongdoer should have foreseen the extent of the harm or the manner in which it occurred, so long as the injuries are the natural, though not inevitable, result of the wrong.”). Instead, only some type of injury must be foreseeable to give rise to a duty of care. In this case, the known danger is flying objects, which is nearly always a baseball. Thus, the duty of care imposed by the majority applies to all flying objects, including baseballs and flying bats. This means a supervisor must protect children from baseballs in the same way as flying bats. Accordingly, this is the duty imposed by the majority that I believe cannot withstand the scrutiny of the factors we rely upon in deciding to impose a duty of care on people, or the scope of such duty of care.
When courts step up to decide whether or not to establish a duty of care under a particular circumstance, three factors are primarily considered: (1) the relationship between the parties, (2) the reasonable foreseeability of harm, and (3) public policy concerns. See Stotts v. Eveleth, 688 N.W.2d 803, 810 (Iowa 2004). These are the same factors that were [**45] essentially applied [*889] by courts in creating the limited duty of care for baseball parks. Yet, the majority avoids any serious discussion and analysis of these factors, but instead merely recognizes that premise liability law, which supports a limited duty of care, is different from supervision-liability law. The majority finds this difference justifies the imposition of a greater duty of care for supervisors to protect others from a premise-based harm than the entity responsible for the creation of the harm. The rationale for this finding is that the supervisor in this case “directed” the children to sit outside the area protected by the netting.
I agree a supervisor should have a continuing duty of care for the safety of children while at the ballpark to protect children from those foreseeable risks of harm that might be encountered from strangers, horseplay on the steps, or other such events, but not from the very risks unique to the game of baseball and those risks that our law has already decided do not need to be eliminated by the baseball parks. An analysis of the factors used to create a duty of care clearly supports this approach.
First, there is nothing particular about a relationship [**46] between a child spectator and an adult supervisor who accompanies the child to a baseball game that favors the imposition of liability. The relationship between parties is a factor in creating a duty of care because it often introduces special considerations that help support a duty, such as control by one party over the other party or special benefits derived by a party. As applied to a baseball game, this factor actually tends to support liability on the premise owner more than it does for liability of a supervisor. The premise owner has a contractual relationship with the spectator, primarily controls the designation of the area to sit, and receives a financial benefit. Moreover, the premise owner has the greatest practical ability to protect the spectator. For sure, the relationship between a supervisor of a field trip to a baseball game and a participant on the field trip is also marked by control over the participant, but not the same type of control that relates to a reasonable and effective ability to provide protection from the inherent risks of watching the game. That is to say, the relationship does not easily transform into the ability of a supervisor to protect the child [**47] spectator from the inherent risks of the game.
The majority finds supervisors determine where children sit, but the baseball park ultimately controls the seating arrangement. Moreover, the seats around home base protected by netting are usually the most expensive seats and are normally reserved for season ticketholders. It is impractical to conclude the relationship between supervisors and children gave supervisors the ability to seat children behind the protective netting.
Second, the foreseeability of harm to child spectators in an unprotected area of the baseball park is the same, if not greater, for the owner of the premise as it is for supervisors of the spectators. The owner has considerably more knowledge of the baseball park and the dangerous areas of the park. A supervisor should be able to safely expect the most dangerous areas for flying objects have been covered by netting, allowing spectators to sit in unprotected areas that are less dangerous.
Third, and most important, the public policies that support limiting the duty of care to protect spectators from the inherent risks of watching baseball are the same under premise-liability law as under supervisor-liability law. These [**48] public-policy concerns have drawn the line, which leaves spectators unprotected except in an area behind home plate. In the other areas of the baseball park, the opportunity [*890] to catch or retrieve a foul ball has won out over the slight risk of harm presented to spectators. In other words, the known risk of harm is not unreasonable under common, practical standards and policies society has embraced since the game was invented by Alexander Cartwright in 1845. 7
7 Alexander Cartwright is recognized as the inventor of modern baseball. He published the rules of baseball in 1845, and his team, the Knickerbocker Club of New York, played the first recorded baseball game in 1846.
Without examining these factors, the majority has changed the game for spectators who bring children to a baseball park to take in the joys of our national pastime. It does this by concluding children must not be exposed to the same inherent risks of attending a baseball game as unsupervised spectators, and by placing the responsibility for protecting children from the inherent risks of attending a baseball game on adults who accompany children to the game. This conclusion, at its core, can only be explained by policies [**49] of overprotectionism and the innate desire to remove children from all potential harm they might encounter in life. Yet, this goal can go too far and can end up depriving children of some of the most rewarding and beneficial experiences of their youth. This will be the likely result of the overprotective decision by the majority in this case.
With this decision, America’s pastime risks becoming a different, or less frequent, event for children than enjoyed in the past. With the imposition of liability on supervisors and others who accompany children to a professional baseball game, the common field trip, as well as the simple pleasure of a parent accompanying a child and the child’s friend to a baseball park, gives rise to new considerations that can only diminish enthusiasm for the trip. Court decisions can have vast consequences on our way of life, and a trip to the ballpark with children in tow may now need to be prCity of Bettendorf and Bettendorf Parks and Recreation,eceded by a trip to a lawyer’s office to obtain a release containing all the essential legal language demanded by the majority or be confined to the most expensive seats behind home base, safely protected from the excitement and anticipation of catching a foul ball.
Just [**50] as there was no joy in Mudville the day the mighty Casey struck out, there is no joy on this day around Iowa’s ballparks. 8 The majority has taken a mighty swing at the correct result in this case and missed by a mile.
8 The legendary baseball poem, “Casey at the Bat,” was written by Ernest Lawrence Thayer, and first published in the San Francisco Examiner on June 3, 1888.
I concur in the majority’s opinion in regard to the release of liability signed by the parent of the child, but join Justice Cady’s dissent as to the duty of care.
Mahan v. Keith Hall, d/b/a Keith Hall Rodeo, 320 Ark. 473; 897 S.W.2d 571; 1995 Ark. LEXIS 296; 68 A.L.R.5th 813Posted: July 14, 2014
Melonie Mahan, and Melonie Mahan As Next and Best Friend of Shawn Mahan, Appellants, v. Keith Hall, d/b/a Keith Hall Rodeo, Appellee
320 Ark. 473; 897 S.W.2d 571; 1995 Ark. LEXIS 296; 68 A.L.R.5th 813
May 15, 1995, Opinion Delivered
May 15, 1995, filed
1. APPEAL & ERROR — REVIEW OF DIRECTED VERDICT — WHEN A DIRECTED VERDICT SHOULD BE GRANTED. — Where the appellant challenged the trial court’s decision to direct a verdict in favor of the appellee, the supreme court reviewed the evidence in a light most favorable to the appellant, the non-moving party, and gave it its highest probative value, taking into account all reasonable inferences; a motion for directed verdict may only be granted if there is no substantial evidence to support a jury verdict.
2. NEGLIGENCE — DAMAGES AND BURDEN OF PROOF — NEGLIGENCE DEFINED. — The plaintiff has the burden of proving that he sustained damages, that the defendant was negligent, and that such negligence was the cause of his damages; here, there was no question that the appellant sustained injury and resulting damages; rather, the issue was whether there was substantial evidence of the appellee’s negligence; negligence is the failure to do something which a reasonably careful person would do; a negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner.
3. APPEAL & ERROR — ASSERTION NOT SUPPORTED BY TESTIMONY AS FOUND IN THE ABSTRACT — RECORD ON APPEAL CONFINED TO THAT WHICH IS ABSTRACTED. — The appellant’s assertion that the gate was not maintained in a reasonably safe condition, unsupported by testimony or other evidence as found in the abstract, was not reached on appeal; the record on appeal is confined to that which is abstracted.
4. NEGLIGENCE — FACT THAT AN INJURY OCCURRED WAS NOT OF ITSELF EVIDENCE OF NEGLIGENCE — TRIAL COURT AFFIRMED. — The fact that a injury, collision or accident occurred was not of itself evidence of negligence or fault on the part of anyone; even though the appellants offered testimony that an accident occurred and that one of them suffered damages, they presented no evidence that the appellee was negligent; the trial court’s decision to direct a verdict in the appellee’s favor was affirmed.
COUNSEL: JOHN THROESCH, POCAHONTAS.
TOM GARNER, GLENCOE.
JUDGES: JACK HOLT, JR., Chief Justice
OPINION BY: JACK HOLT, JR.
[*474] [**571] JACK HOLT, JR., Chief Justice
This is a negligence case. The appellant, Melonie Mahan, brought suit against the appellee, Keith Hall, d/b/a Keith Hall Rodeo, and the Sharp County Fair Association, on behalf of herself and her minor son, Shawn Mahan, who was injured while attending a rodeo produced by Mr. Hall. The case was settled as to the Sharp County Fair Association, and at trial, the court directed a verdict in favor of Mr. Hall, which is the basis for Ms. Mahan’s sole point of error on appeal. As Ms. Mahan failed to prove that Mr. Hall was negligent, we affirm.
On July 8, 1992, sixteen-year-old Shawn Mahan attended a rodeo in Sharp County which was produced by the appellee, Keith Hall, d/b/a Keith Hall Rodeo. Shawn and a friend, Derrick Kildow, went to watch another friend ride in the rodeo, which was located on property owned by the Sharp County Fair Association. While Shawn and Derrick [***2] were standing near a gate outside the arena, but in an area open to the public, a bucking horse broke through the gate, which in turn struck Shawn, causing injuries to his face.
In a complaint against both Mr. Hall and the Sharp County Fair Association, Ms. Mahan alleged that Shawn was a business invitee of Mr. Hall and the Association, each of whom “owed him a duty to use ordinary care [**572] to prevent injuries to him.” Ms. Mahan sought damages for personal injury, both temporary and permanent, pain and suffering, mental anguish, lost wages, and compensatory damages for medical treatment. While Mr. Hall admitted in his answer that the rodeo was open to the public, he denied that he was negligent.
The case settled as to separate defendant Sharp County Fair Association, but proceeded to trial as to Mr. Hall. At trial, Shawn testified that on the night in question, he and Derrick arrived at the arena and sat down in the bleachers before going over to a concession stand to get something to drink. From the concession stand, the two left the arena and walked over to a horse trailer where saddles and rodeo items were being sold and where some smaller children were playing around. [***3] According to Shawn, he and Derrick were standing outside the arena watching a rodeo event when the horse bucked off its rider, circled the inside of the arena, then broke through the gate, injuring him. It was also Shawn’s testimony that the rodeo announcer was standing in front of the gate, approximately one foot away from where he and Derrick were standing, and that the announcer blocked his view when the horse came through the gate.
Shawn further testified that his cheekbone was crushed as a result of the accident, and that he was unable to move his mouth for approximately three months afterward. According to Shawn, he underwent surgery, and has no feeling on the left side of his face. He further stated that he had problems with his jaw, that he [*476] was suffering from frequent headaches, that he was unable to work at his job at IGA for three months, and that he was no longer able to play football. Ms. Mahan corroborated her son’s testimony regarding the extent of his injuries, adding that he was “scared to eat” for a long time after the accident, and that she had incurred medical expenses in the amount of $ 5372.35.
Derrick Kildow testified that he too was injured when [***4] the horse came through the gate, as he had to have stitches after being hit above his right eye. According to Derrick, he and Shawn did not have time to react or to get out of the way when the horse struck the gate, as the announcer was obstructing their view and did not move until the horse got to him and came through the gate.
At the close of Ms. Mahan’s case, Mr. Hall moved for directed verdict on the grounds that Ms. Mahan had failed to show that he had breached a duty of care owed to Shawn or that he was negligent. Ms. Mahan responded that Shawn had paid an admittance to get into the rodeo on the date in question, and, as such, was a business invitee of Mr. Hall, who owed him a duty of care to secure the gate and to see that he was not injured. When the trial court inquired as to the presence of any testimony indicating that Mr. Hall did not secure the gate, Ms. Mahan responded that the fact that the horse came through the gate was “in itself evidence that the gate wasn’t secure,” that Mr. Hall had been producing rodeos for several years and had knowledge of the dangerous propensities of the animals, and that the gate was not maintained in a reasonably safe condition. Mr. Hall [***5] argued that Arkansas Model Jury Instruction (Civil) 603 states that “the fact that an injury, collision or accident occurred is not of itself evidence of negligence or fault on the part of anyone.” The trial court agreed, finding that while Ms. Mahan had proved an accident and had shown where it had occurred, she had not shown any breach of duty on the part of Mr. Hall. It is from the trial court’s granting of Mr. Hall’s motion for directed verdict that Shawn appeals.
 As Ms. Mahan challenges [HN1] the trial court’s decision to direct a verdict in favor of Mr. Hall, we will review the evidence in a light most favorable to Ms. Mahan, the non-moving party, and give it its highest probative value, taking into account all [*477] reasonable inferences. Miller v. Nix, 315 Ark. 569, 868 S.W.2d 498 (1994); Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993). A motion for directed verdict may only be granted if there is no substantial evidence to support a jury verdict. Id.
 We have said that [***6] [HN2] the plaintiff has the burden of proving that he sustained damages, [**573] that the defendant was negligent, and that such negligence was the cause of his damages. Sanford v. Ziegler, 312 Ark. 524, 851 S.W.2d 418 (1993); Fuller v. Johnson, 301 Ark. 14, 781 S.W.2d 463 (1989). Here, there is no question that Shawn sustained injury and resulting damages; rather, the issue before us is whether there was substantial evidence of Mr. Hall’s negligence. See Sanford v. Ziegler, supra. [HN3] Negligence is the failure to do something which a reasonably careful person would do; a negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner. Sanford v. Ziegler, supra; White River Rural Water Dist. v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992).
 Ms. Mahan contends that because Shawn purchased a ticket to [***7] see the rodeo, he was an invitee of Mr. Hall, who, as the producer of the rodeo, owed Shawn a duty to exercise ordinary care to maintain the premises in a reasonably safe condition. See Black v. Wal-Mart Stores, Inc., 316 Ark. 418, 872 S.W.2d 56 (1994). While Ms. Mahan asserts that the gate was not maintained in a reasonably safe condition, she presented no such testimony or other evidence to prove this assertion. And while the trial court and counsel for both Ms. Mahan and Mr. Hall allude to testimony that the gate was tied or chained, we find no such testimony in the abstract. It is fundamental that the record on appeal is confined to that which is abstracted. Davis v. State, 318 Ark. 212, 885 S.W.2d 292 (1994).
 While Ms. Mahan maintains that the fact that the horse came through the gate was “in itself evidence that the gate wasn’t secure,” we agree with Mr. Hall’s assertion that “the fact that a injury, collision or accident occurred is not of itself evidence of negligence or fault on the part of anyone.” See AMI 603. Granted, Ms. Mahan, her son Shawn, and Derrick Kildow [*478] offered testimony that an accident occurred [***8] and that Shawn suffered damages, yet they simply presented no evidence that Mr. Hall was negligent. For this reason, we affirm the trial court’s decision to direct a verdict in Mr. Hall’s favor.
James Massengill and Kaylea Massengill, Appellants (Plaintiffs), v. S.M.A.R.T. Sports Medicine Clinic, P.C., Appellee (Defendant).
SUPREME COURT OF WYOMING
996 P.2d 1132; 2000 Wyo. LEXIS 21
February 14, 2000, Decided
PRIOR HISTORY: [**1] Appeal from the District Court of Laramie County. The Honorable Nicholas G. Kalokathis, Judge.
COUNSEL: Representing Appellants: Robert A. Hampe, Cheyenne, Wyoming (Withdrew pursuant to an Order of Suspension Upon Consent entered in the Wyoming Supreme Court on June 18, 1999.)
Representing Appellee: John I. Henley of Vlastos, Brooks, Henley & Drell, P.C., Casper, Wyoming.
JUDGES: Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and TAYLOR, * JJ.
* Retired November 2, 1998.
OPINION BY: THOMAS
[*1132] THOMAS, Justice.
The only issue in this case is whether a waiver of liability in a contract between S.M.A.R.T. Sports Medicine Clinic, P.C. (S.M.A.R.T.) and James Massengill (Massengill) is enforceable under the standards adopted in Schutkowski v. Carey, 725 P.2d 1057 (Wyo. 1986) and followed in later cases. Massengill was using a lat-pull-down machine at S.M.A.R.T. when a pin used to secure the weights fell out. Apparently the pin did not fit properly in the machine, and when the pin fell out, Massengill fell over backwards injuring his wrist. In various statements of the [*1133] issues, Massengill attacks the validity of the waiver of liability on the grounds [**2] that it violated public policy; the business of S.M.A.R.T. is suitable for public regulation; the use of the premises at the time of injury by Massengill is not material; the question of duty is one that must be determined by a trier of fact; and S.M.A.R.T. owed a statutory duty to Massengill which invalidates the waiver. Our review of the record and legal precedent in Wyoming persuades us that the district court ruled correctly that there is no genuine issue of material fact in this case, and S.M.A.R.T. is entitled to judgment as a matter of law. The Order Granting Defendant’s Motion for Summary Judgment is affirmed.
In the Appellants’ Supreme Court Brief, filed on behalf of James Massengill and Kaylea Massengill (collectively the Massengills), these issues are stated:
Did the district court error [sic] in validating the “waiver of liability” in the “sports specific training and advanced rehab agreement and release["] due to the fact that:
(A) The release violated public policy,
(B) The business operated by appellee is suitable for public regulation, and
(C) Plaintiff J. Massengill was engaged in non therapeutic activities on the premises of [**3] the medical clinic has no bearing on whether the release should be validated or not?
Is the duty issue in this case purely a question of law where the basic facts are undisputed or is the duty issue one which can only be determined by the trier of fact?
Did appellee owe a statutory duty of care to appellant which would invalidate the waiver incorporated in the sports specific training and advanced rehabilitation agreement & release?
In the Brief of Appellee S.M.A.R.T. Sports Medicine Clinic, P.C., the issues are stated in this way:
Was the waiver of liability executed by the Appellants valid[?]
(i) Was the Appellee’s waiver language inclusive and unambiguous as required by prior Wyoming Supreme Court case law; [or]
(ii) Is the waiver language of the Appellee contrary to public policy[?]
One evening James Massengill engaged in a conversation at a Cheyenne drugstore with the equity owner of S.M.A.R.T., a physician in Cheyenne. Massengill knew that S.M.A.R.T. had a weight room, and had seen recent advertisements to the effect that the facility offered personal trainers to assist members. In the course of a brief [**4] conversation, Massengill mentioned his interest in S.M.A.R.T.’s facilities, and the physician suggested he come over and try it out. A month or two following the conversation, Massengill went to S.M.A.R.T. and toured the facilities. The purpose of his initial visit was to assure himself that the equipment met his need, which was to get in better condition.
After he had been shown the facilities and the equipment, Massengill was given a Sports Specific Training and Advanced Rehabilitation Agreement and Release (Agreement and Release) to take home and review. Three days later, both Massengill and his wife executed the Agreement and Release, and they began using the facilities. Massengill was present at S.M.A.R.T. almost every day, and he had been using the lat-pull-down machine for nearly a month prior to his injury. He had not asked any questions about using the machine because he had used one previously. On March 13, 1996, Massengill was warming up on the machine, and he noticed that the pin holding the weights was shaped like a “T” rather than the longer “I” usually used. When Massengill pulled the bar down, the pin holding the weights popped out, and he fell over backwards, hitting [**5] his left hand and injuring his wrist.
On May 29, 1997, the Massengills filed their Complaint for Negligence and Damages. The first count of the Complaint for Negligence and Damages was couched in terms of alleged negligence causing injury to James Massengill, and the second count was couched in terms of recovery by Kaylea Massengill [*1134] for loss of consortium based upon her husband’s injuries. Various procedural steps, including discovery, followed the Answer by S.M.A.R.T., which included the affirmative defense of waiver and the affirmative defense that Kaylea Massengill’s claims were derivative of James Massengill’s claim. On October 3, 1997, there was filed by facsimile a Defendant’s Motion for Summary Judgment accompanied by a Memorandum in Support of Defendant’s Motion for Summary Judgment. Additional procedural steps ensued, and on February 2, 1998, the district court entered an Order Granting Defendant’s Motion for Summary Judgment.
The district court ruled that the exculpatory clause, including the release and waiver, was not ambiguous and was enforceable. Since the premise for the grant of the summary judgment by the district court was the language contained in the Agreement [**6] and Release, the district court ruled implicitly that any other issues of fact, genuine or not, were not material. The Massengills have appealed from the Order Granting Defendant’s Motion for Summary Judgment.
In Mercado v. Trujillo, 980 P.2d 824, 825-26 (Wyo. 1999), we summarized our rules with respect to review of summary judgments:
“‘When [HN1] a motion for summary judgment is before the supreme court, we have exactly the same duty as the district judge; and, if there is a complete record before us, we have exactly the same material as did he. We must follow the same standards. The propriety of granting a motion for summary judgment depends upon the correctness of a court’s dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from the facts contained in affidavits, depositions and other proper material appearing in the record.'” Reno Livestock Corporation v. Sun Oil Company (Delaware), Wyo., 638 P.2d 147, 150 (1981). [**7] See also, Blackmore v. Davis Oil Company, Wyo., 671 P.2d 334, 336 (1983).
“A [HN2] summary judgment should only be granted where it is clear that there are no issues of material facts involved and that an inquiry into the facts is unnecessary to clarify the application of law. Johnson v. Soulis, Wyo., 542 P.2d 867 (1975). A material fact is one which has legal significance. Johnson v. Soulis, supra. It is a fact which would establish a defense. Wood v. Trenchard, Wyo.[,] 550 P.2d 490 (1976). [HN3] After the movant establishes a prima facie case the burden of proof shifts to the opposing party who must show a genuine issue of material fact, Gennings v. First Nat’l Bank of Thermopolis, Wyo., 654 P.2d 154 (1982), or come forward with competent evidence of specific facts countering the facts presented by the movant. Matter of the Estate of Brosius, Wyo., 683 P.2d 663 (1984). The burden is then on the nonmoving party to show specific facts as opposed to general allegations. 10 Wright & Miller, Federal Practice and Procedure: Civil § 2727, p. 538. The material presented must be admissible evidence [**8] at trial. Conclusory statements are not admissible. Bancroft v. Jagusch, Wyo., 611 P.2d 819 (1980). We give the party defending the motion the benefit of any reasonable doubt.” Roth v. First Security Bank of Rock Springs, Wyoming, Wyo., 684 P.2d 93, 95 (1984).
Nowotny v. L & B Contract Industries, 933 P.2d 452, 455 (Wyo.1997) (quoting Thomas by Thomas v. South Cheyenne Water and Sewer Dist., 702 P.2d 1303, 1304 (Wyo.1985)).
More specifically and succinctly, with respect to this case, when review is sought of a summary judgment this Court must determine that there is no genuine issue of a material fact and the party prevailing in the district court is entitled to judgment as a matter of law. Utilization of summary judgment serves the purpose of eliminating formal trials where only questions of law are involved. [HN4] In accomplishing the review of a summary judgment resting upon a question [*1135] of law, our review is de novo and affords no deference to the district court’s ruling on that question. E.g., Roberts v. Klinkosh, 986 P.2d 153, 156 (Wyo. 1999); Gray v. Norwest Bank Wyoming, N.A., 984 P.2d 1088, 1091 (Wyo. 1999); [**9] Ahrenholtz v. Time Ins. Co., 968 P.2d 946, 949 (Wyo. 1998).
Our reading of the Agreement and Release convinces us that the intention of S.M.A.R.T. and the Massengills is expressed in clear and unequivocal language. The language clearly assigns the risk to members who agree to be liable for any and all risks. The Agreement and Release continues with an unequivocal statement that S.M.A.R.T. shall not be liable for any injuries or damages to any member or the member’s property, including those caused by the negligence of S.M.A.R.T. It continues with this language:
1. Any member using S.M.A.R.T. SPORTS facility shall undertake any and all risks. The member shall also be liable for any and all risks. S.M.A.R.T. SPORTS shall not be liable for any injuries or damage to any member, or the property of the member, or be subject to any claim, demand, injury or damages whatsoever, including, without limitation, those damages resulting from acts of negligence on the part of S.M.A.R.T. SPORTS, its officers or agents. The member, for himself/herself and on behalf of his/her executors, administrators, heirs, assigns, and assignees and successors, does hereby expressly forever [**10] waive, release and discharge S.M.A.R.T. SPORTS, its owners, officers, employees, agents, assigners and successors from all such claims, demands, injuries, damages, actions or causes of action.
The language of the Agreement and Release is broad, and specifically releases S.M.A.R.T. from claims and actions for negligence. Indeed, the Massengills do not assert that the agreement does not apply to this action; instead, their contention is that the agreement is not enforceable. In the absence of any genuine issue of a material fact with respect to the language of the Agreement and Release, the issue is a pure question of law with respect to whether the district court invoked and correctly applied the pertinent rules of law.
In Shepard v. Top Hat Land & Cattle Co., 560 P.2d 730, 732 (Wyo. 1977), the applicable rule was summarized:
[HN5] If the language of the contract is plain and unequivocal that language is controlling and the interpretation of the contractual provisions is for the court to make as a matter of law. The meaning of the instrument is to be deduced only from its language if the terms are plain and unambiguous. Mauch v. Ballou, Wyo., 499 P.2d 591 (1972); [**11] Craig v. Gudim, Wyo., 488 P.2d 316 (1971); Chandler-Simpson, Inc. v. Gorrell, Wyo., 464 P.2d 849 (1970); Flora Construction Company v. Bridger Valley Electric Association, Inc., Wyo., 355 P.2d 884 (1960); Barlow v. Makeeff, 74 Wyo. 171, 284 P.2d 1093 (1955).
This rule first was alluded to by this Court in Horvath v. Sheridan-Wyoming Coal Co., 58 Wyo. 211, 230, 131 P.2d 315, 321 (1942), and it has been consistently applied over the years, appearing most recently in Saulcy Land Co. v. Jones, 983 P.2d 1200, 1202 (Wyo. 1999).
[HN6] Exculpatory clauses or releases are contractual in nature, and we interpret them using traditional contract principles and considering the meaning of the document as a whole. Milligan v. Big Valley Corp., 754 P.2d 1063, 1065 (Wyo. 1988); Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 712 (Wyo. 1987); Schutkowski, 725 P.2d at 1059; Kelliher v. Herman, 701 P.2d 1157, 1159 (Wyo. 1985). The language of the Agreement and Release is clear in manifesting an intention to release S.M.A. [**12] R.T. and those involved with the facility from liability; it specifically states that S.M.A.R.T. will not be held liable for “those damages resulting from acts of negligence on the part of S.M.A.R.T. SPORTS, its officers or agents.” And, just as in Boehm, 748 P.2d at 712, “[a] plain reading of the language in the context of the entire membership application evidences no other rational purpose for which it could have been intended.”
The Massengills endeavor to avoid the release and waiver articulated in the Agreement and Release by arguing that it is not valid as a matter of public policy because the business of S.M.A.R.T. is appropriate for [*1136] public regulation, and the nature of the use of the equipment by Massengill is not material to the public policy or public regulation determination. We said in Fremont Homes, Inc. v. Elmer, 974 P.2d 952, 956 (Wyo. 1999):
[HN7] In Wyoming, a contract limiting liability for negligence may be enforced only if it does not contravene public policy. Schutkowski v. Carey, 725 P.2d 1057, 1059-60 (Wyo.1986); Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 710 (Wyo. 1987); Brittain v. Booth, 601 P.2d 532, 535 (Wyo.1979). [**13]
In Schutkowski, 725 P.2d at 1060, this Court adopted from Colorado a four-part test for evaluating a negligence exculpatory clause. [HN8] The factors the court considers are: “(1) whether a duty to the public exists; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” A comparison of Massengill’s claim with these factors leads to the ineluctable conclusion that the district court’s decision was correct as a matter of law.
We said in Milligan, 754 P.2d at 1066, “[ [HN9] a] duty to the public exists if the nature of the business or service affects the public interest and the service performed is considered an essential service.” We then adopted from California [HN10] a definition of a release agreement affecting the public interest, giving rise to a public duty, which is that it
“concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for [**14] some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it * * *. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.” (Emphasis added and footnotes omitted.) Tunkl v. Regents of University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 445-46, 6 A.L.R.3d 693 (1963).
Milligan, 754 P.2d at 1066. We also adopted a [HN11] list of examples of services which are typically subject to public regulation and which demand a public duty or are considered essential. The list includes common carriers, hospitals and doctors, public utilities, innkeepers, public warehousemen, employers, and services involving extra-hazardous activities. Milligan, 754 P.2d at 1066.
Schutkowski was a case involving a sky diving injury, and we held that [HN12] a private recreational business does not qualify as one that owes a special duty to the public nor are its services of a special, highly [**15] necessary nature. Schutkowski, 725 P.2d at 1060. The services offered by S.M.A.R.T. to its members were those of a private recreational business which did not qualify as suitable for public regulation because they did not affect the public interest nor could they be considered as necessary or essential, and there was no greater duty to the public than existed in Schutkowski, Boehm or Milligan. The district court in its Order Granting Defendant’s Motion for Summary Judgment cites and relies upon decisions from other jurisdictions which have held that [HN13] exculpatory clauses in health club contracts do not violate public policy. Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 926 (Minn. 1982); Shields v. Sta-Fit, Inc., 79 Wn. App. 584, 903 P.2d 525, 528 (1995). We are persuaded that the approach of the courts in Minnesota and Washington is the correct rule.
Massengill further maintains that he joined S.M.A.R.T. pursuant to a doctor’s order, and as such was receiving an essential service; therefore, S.M.A.R.T. owed him a public duty that is subject to regulation. A casual conversation, at a drugstore one evening, with the doctor/equity [**16] owner of the S.M.A.R.T. facility hardly qualifies as a prescription. The doctor was not Massengill’s treating physician nor was he acting in that capacity; he engaged in the conversation as the owner of the facility and not a physician. Moreover, the record is devoid of evidence showing that on the day he was injured, Massengill was engaging in a rehabilitation program. He admitted joining S.M.A.R.T. to [*1137] get into better physical condition. That was the purpose of his membership at S.M.A.R.T., and it qualifies as a recreational activity and not a practical necessity. Based on Massengill’s own testimony, his membership was purely recreational and not pursuant to a doctor’s order. There is no genuine issue of material fact as to the purpose or nature of Massengill’s use of the S.M.A.R.T. facility that needs to be resolved.
The third factor in the Schutkowski test is whether the contract was fairly entered into. Since membership in a private recreational facility such as S.M.A.R.T. is purely optional and does not qualify as an essential service, no decisive bargaining advantage exists. “A disparity of bargaining power will be found when a contracting party with little or no bargaining [**17] strength has no reasonable alternative to entering the contract at the mercy of the other’s negligence.” Milligan, 754 P.2d at 1066. Similar to the releases in Milligan, which involved an optional ski race, and Schutkowski, which involved sky diving, no evidence suggests that Massengill was unfairly pressured into signing the agreement or was deprived of the opportunity to understand its implications. In fact, after Massengill initially toured the facilities, he was given the Agreement and Release to take with him, which he filled out at home and returned three days later.
In determining that the Order Granting Defendant’s Motion for Summary Judgment should be considered under principles of contract law, we held that the last factor of the Schutkowski test is satisfied in this case. The intent of the parties was clearly expressed in clear and unambiguous language. [HN14] We interpret exculpatory clauses or releases using traditional contract principles, and consider the meaning of the document as a whole. Milligan, 754 P.2d at 1067. Just as in Boehm, 748 P.2d at 712, “[a] plain reading of the language in the context of the [**18] entire membership application evidences no other rational purpose for which it could have been intended.”
In a further effort to avoid the Agreement and Release, the Massengills present an argument that the Recreation Safety Act, Wyo. Stat. Ann. §§ 1-1-121 to 1-1-123 (Lexis 1999), creates a statutory duty on the part of providers of a sport or recreational opportunity because it preserves actions based upon negligence if damage or injury is not the result of an inherent risk of the sport or recreational opportunity. The Massengills rely upon Halpern v. Wheeldon, 890 P.2d 562, 565 (Wyo. 1995), and the distinction drawn in that case between primary assumption of risk and secondary assumption of risk. The thrust of this rather convoluted argument is that, if the conduct of the defendant comes within the category of secondary assumption of risk, a statutory duty is created by the language that preserves actions based on negligence. The Massengills then contend that the Agreement and Release cannot be enforced because it is contrary to the statutory duty. No authority is cited for that precise proposition, and we are satisfied that [HN15] the Recreation Safety Act does not foreclose [**19] the invocation of a contractual release or waiver for negligent conduct that is not released by the assignment of the inherent risk to the person participating in the sport or recreational opportunity under the statute. Indeed, the limited reach of the statute would suggest that a contractual release in addition to the statute would be prudent.
With respect to the claim of Kaylea Massengill for loss of consortium, her cause of action was included in the Order Granting Defendant’s Motion for Summary Judgment. She executed the same Agreement and Release that James Massengill signed. Furthermore, her claim for loss of consortium was derivative of James Massengill’s claim for injuries, and it fails when his claim fails. Verschoor v. Mountain West Farm Bureau Mut. Ins. Co., 907 P.2d 1293, 1301 (Wyo. 1995); Boehm, 748 P.2d at 708.
The only pertinent issue in this case was whether the exculpatory clause should be held to violate public policy and not enforced for that reason. The record reflects that Massengill’s participation was purely recreational and S.M.A.R.T. did not owe him a public duty. S.M.A.R.T. is not engaged in a type of business generally [**20] thought suitable for public regulation, and Massengill was engaged in a recreational activity not an activity pursuant to a physician’s order. The case [*1138] is correctly resolved as a matter of law under principles relating to contract, and the contractual language being clear and unambiguous, there are no genuine issues of material fact. The case is controlled by Schutkowski and the later cases that followed it. We affirm the district court’s Order Granting Defendant’s Motion for Summary Judgment.
Court Of Appeals Of Indiana
931 N.E.2d 933; 2010 Ind. App. LEXIS 1501
August 16, 2010, Decided
August 16, 2010, Filed
PRIOR HISTORY: [**1]
APPEAL FROM THE WHITLEY CIRCUIT COURT. The Honorable James R. Heuer, Judge. Cause No. 92C01-0809-CT-652.
COUNSEL: ATTORNEY FOR APPELLANT: SARAH E. RESER, Glaser & Ebbs, Fort Wayne, Indiana.
ATTORNEY FOR APPELLEE: CARRIE KOONTZ GAINES, Kopka, Pinkus Dolin & Eads, L.L.C., Mishawaka, Indiana.
JUDGES: ROBB, Judge. FRIEDLANDER, J., and KIRSCH, J., concur.
OPINION BY: ROBB
[*934] OPINION – FOR PUBLICATION
Case Summary and Issue
Teresa Perry appeals the trial court’s entry of summary judgment in favor of Whitley County 4-H Clubs, Inc. (the “4-H Club”) on Perry’s negligence complaint for personal injuries suffered during a horse competition sponsored by the 4-H Club. For our review, Perry raises two issues, which we consolidate and restate as whether the trial court properly granted summary judgment based on the Indiana Equine Activity Statute. Concluding there is no genuine issue of material fact and the Equine Activity Statute bars Perry’s claim for injuries resulting from inherent risks of equine activities, we affirm.
Facts and Procedural History
The undisputed facts and those most favorable to Perry as the non-movant are as follows. At all relevant times, Perry, an adult, was a member of the 4-H Clubs Equine Advisory [**2] Board, which provides guidance and instruction to children participating in the 4-H Club’s horse events, and was herself a regular participant in those [*935] events. Perry was also the owner of seven horses. In July 2007, the 4-H Club held horse practices and competitions at the Whitley County Fairgrounds as part of the Whitley County Fair. These events were generally held in the 4-H Club’s Horse Barn, but one event, the Large Animal Round Robin Competition, was held in the 4-H Club’s Show Barn, located next to the Horse Barn. The Horse Barn is over 100 feet wide but the Show Barn is approximately thirty-six feet wide along its shorter side. Horses were generally familiar with the Horse Barn but unfamiliar with the Show Barn, where they were “not allowed any other time” besides the Round Robin Competition. Appellant’s Appendix at 88. At all entrances to the Horse Barn, the 4-H Club had posted “Equine Activity warning signs” that were “clearly visible.” Id. at 18-19 (affidavit of Bill Leeuw, 4-H Club’s President of the Board).
On July 25, 2007, the Round Robin Competition was held. The Equine Advisory Board and volunteers selected the horses to be shown, and Perry herself selected one of those [**3] horses “at the last minute.” Id. at 93. Perry was present at the Round Robin Competition as an Equine Advisory Board member responsible for the safety of children handling the horses. As part of the event, seven horses were led from the Horse Barn into the Show Barn and lined up approximately two and one-half feet apart along the shorter side of the Show Barn. The horses were then turned over to children who did not normally handle horses but had experience handling animals such as pigs and cows and had received brief instruction on how to handle a horse. After one of the children finished leading a horse through a series of maneuvers, the child left the horse facing away from the center of the Show Barn, in the opposite direction from the neighboring horses and with its rear next to the head of a neighboring horse. The horse facing backwards began sniffing the rear of the neighboring horse, which pinned its ears against its head as a sign it was agitated. Perry realized this situation posed a danger to the child handling the horse facing backwards. Perry therefore approached the child and told the child to turn the horse around. As the child was doing so, the neighboring horse kicked [**4] Perry in the knee. Perry was thrown back and suffered personal injuries.
In September 2008, Perry filed a complaint against the 4-H Club alleging her injuries were caused by the 4-H Club’s negligence in “allowing horse activities to be conducted on premises unsuitable for such activities.” Id. at 6. As specifically argued by Perry at the summary judgment hearing, she alleged the 4-H Club was negligent in deciding to hold the Round Robin Competition in the Show Barn instead of the Horse Barn, as the smaller Show Barn “requires horses to be placed close together, increasing the chances that a child near the horse will be injured by one. It’s also an environment the horses aren’t familiar with, which makes it more likely that a horse will get spooked and kick someone.” Transcript at 4. Among the 4-H Club’s affirmative defenses, it alleged in its answer that Perry’s claim was barred by the Indiana Equine Activity Statute.
The 4-H Club filed a motion for summary judgment based in part on the Equine Activity Statute. Following a hearing, the trial court on January 27, 2010, issued its order granting summary judgment to the 4-H Club. The trial court found and concluded in relevant part:
14. [**5] The [4-H Club] was a sponsor of an equine activity when the accident occurred.
15. [Perry] was a participant in the equine activity in her capacity as a safe [*936] keeper when she approached the horses and was kicked.
16. The Equine Activities Act . . . is applicable to this case.
17. Being kicked by a horse is an inherent risk of equine activity.
18. There is no evidence in the designation of material facts that [the 4-H Club] committed an act or omission which constituted a reckless disregard for the safety of [Perry] or that any other conditions set in [Indiana Code section] 34-31-5-2 existed at the time of the accident.
Appellant’s App. at 5. Perry now appeals.
Discussion and Decision
I. Standard of Review
[HN1] We review a summary judgment order de novo. Tri-Etch, Inc. v. Cincinnati Ins. Co., 909 N.E.2d 997, 1001 (Ind. 2009). In so doing, we stand in the same position as the trial court and must determine whether the designated evidence shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind. 2009). In making this determination, we construe [**6] the evidence in a light most favorable to the non-moving party and resolve all doubts as to the existence of a genuine factual issue against the moving party. N. Ind. Pub. Serv. Co. v. Bloom, 847 N.E.2d 175, 180 (Ind. 2006). Our review of a summary judgment motion is limited to those materials designated by the parties to the trial court. Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). The movant has the initial burden of proving the absence of a genuine factual dispute as to an outcome-determinative issue and only then must the non-movant come forward with evidence demonstrating genuine factual issues that should be resolved at trial. Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994).
Because this case turns on the proper application of the Equine Activity Statute, we also recite our well-established standard of review for interpretation of statutes:
[HN2] When courts set out to construe a statute, the goal is to determine and give effect to the intent of the legislature. The first place courts look for evidence is the language of the statute itself, and courts strive to give the words their plain and ordinary meaning. [**7] We examine the statute as a whole and try to avoid excessive reliance on a strict literal meaning or the selective reading of individual words. We presume the legislature intended the language used in the statute to be applied logically, consistent with the statute’s underlying policy and goals, and not in a manner that would bring about an unjust or absurd result.
Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1283 (Ind. 2009) (citations omitted).
II. Equine Activity Statute
A. Warning Signs
Perry argues the trial court erred in granting summary judgment because there is a genuine issue of fact as to whether the 4-H Club complied with the warning sign requirements of the Equine Activity Statute. We address this sub-issue first because it bears on the threshold applicability of the Equine Activity Statute as a bar to Perry’s claim. See Ind. Code § 34-31-5-3(a) (providing [HN3] “[t]his chapter does not apply unless” equine activity sponsor has posted at least one complaint warning sign). In response to Perry’s argument, the 4-H Club initially [*937] contends Perry waived the argument by not raising it to the trial court prior to the summary judgment hearing. We disagree. In general, arguments [**8] by an appellant are waived if not presented to the trial court on summary judgment, see Cook v. Ford Motor Co., 913 N.E.2d 311, 322 n.5 (Ind. Ct. App. 2009), trans. denied, and summary judgment may not be reversed on the grounds of a genuine factual issue “unless the material fact and the evidence relevant thereto shall have been specifically designated to the trial court,” T.R. 56(H). However, Perry did argue at the summary judgment hearing that the evidence designated by the 4-H Club was insufficient to establish its compliance with the warning sign requirements of the Equine Activity Statute. Moreover, this issue was already before the trial court based upon the 4-H Club’s motion for summary judgment and designation of material facts.
Proceeding to Perry’s claim, [HN4] the Equine Activity Statute provides that an equine activity sponsor, as a condition precedent to immunity under the statute, must post and maintain a warning sign in at least one location “on the grounds or in the building that is the site of an equine activity.” Ind. Code § 34-31-5-3(a)I. The sign “must be placed in a clearly visible location in proximity to the equine activity,” and the warning must be printed in black [**9] letters at least one inch in height. Ind. Code § 34-31-5-3(b), (c). The warning must state: “Under Indiana law, an equine professional is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities.” Ind. Code § 34-31-5-5.
The undisputed evidence is that the 4-H Club, on the day of the incident, maintained “Equine Activity warning signs” on all entrances to the Horse Barn, and the signs were “clearly visible.” Appellant’s App. at 18-19. The 4-H Club’s equine activities were regularly held inside the Horse Barn, except for the Round Robin Competition held in the Show Barn located next to the Horse Barn. Perry acknowledged in her deposition she had seen “those signs” on the Horse Barn, id. at 114, and did not designate any evidence the signs were absent on the day of the incident or lacked the specific warning required by Indiana Code section 34-31-5-5. Perry argues, in effect, that because the only photographs the 4-H Club properly designated to the trial court do not directly show the signs contained the specific warning required, 1 the 4-H Club did not meet its burden of making a prima facie case of compliance [**10] with the statute. We decline Perry’s invitation to, in effect, interpret the Equine Activity Statute to require an equine activity sponsor to submit such photographic or documentary evidence in order to support its claim of immunity. Rather, we conclude the affidavit the 4-H Club properly designated established its prima facie case that it maintained proper warning signs, such that the burden shifted to Perry to come forward with evidence the signs were deficient. Because she did not do so, there is no genuine issue of fact as to the warning signs, and the trial court [*938] properly concluded the Equine Activity Statute applies to this case.
1 The parties dispute, and it is unclear from the record, whether a photograph identified as Defendant’s Exhibit A at Perry’s deposition, and allegedly included along with the deposition in the 4-H Club’s designation of evidence, was actually part of the designated material submitted to the trial court. That photograph, unlike those included as the 4-H Club’s Exhibit C in support of summary judgment and to which the 4-H Club referred at the summary judgment hearing, shows a warning sign containing the text specified in Indiana Code section 34-31-5-5.
B. [**11] Inherent Risk of Equine Activities
Perry also argues the trial court erred in granting summary judgment because there is a genuine issue of fact as to whether her injuries resulted from an inherent risk of equine activities. The Equine Activity Statute provides:
[HN5] Subject to section 2 of this chapter, an equine activity sponsor or equine professional is not liable for:
(1) an injury to a participant; or
(2) the death of a participant;
resulting from an inherent risk of equine activities.
Ind. Code § 34-31-5-1(a). 2 [HN6] The definition of “inherent risks of equine activities” is:
the dangers or conditions that are an integral part of equine activities, including the following:
(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.
(2) The unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals.
(3) Hazards such as surface and subsurface conditions.
(4) Collisions with other equines or objects.
(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the [**12] animal or not acting within the participant’s ability.
Ind. Code § 34-6-2-69. The Equine Activity Statute further provides:
[HN7] Section 1 of this chapter does not prevent or limit the liability of an equine activity sponsor . . .:
(A) provided equipment or tack that was faulty and that caused the injury; and
(B) knew or should have known that the equipment or tack was faulty;
(2) who provided the equine and failed to make reasonable and prudent efforts based on the participant’s representations of the participant’s ability to:
(A) determine the ability of the participant to engage safely in the equine activity; and
(B) determine the ability of the participant to safely manage the particular equine;
(A) was in lawful possession and control of the land or facilities on which the participant sustained injuries; and
(B) knew or should have known of the dangerous latent condition that caused the injuries;
if warning signs concerning the latent dangerous condition were not conspicuously posted on the land or in the facilities;
(4) who committed an act or omission that:
(A) constitutes reckless disregard for the safety of the participant; and
(B) caused the injury; or
[*939] (5) who intentionally [**13] injured the participant.
Ind. Code § 34-31-5-2(b). As Indiana’s Equine Activity Statute has not previously been interpreted in any reported case, 3 we will cite for their persuasive value the decisions of other jurisdictions that have interpreted similar statutes.
2 “Equine activity,” pursuant to its statutory definition, includes among other things “[e]quine shows, fairs, competitions, performances, or parades that involve equines.” Ind. Code § 34-6-2-41(a). “Equine activity sponsor” means “a person who sponsors, organizes, or provides facilities for an equine activity.” Ind. Code § 34-6-2-42. Perry does not dispute that the 4-H Club qualifies as an equine activity sponsor.
3 In Anderson v. Four Seasons Equestrian Center, Inc., 852 N.E.2d 576 (Ind. Ct. App. 2006), trans. denied, the only reported case citing the Equine Activity Statute, this court affirmed summary judgment for the defendant on the alternative grounds of waiver and release of liability. Id. at 585. We concluded the waiver applied because the plaintiff’s fall from a horse that moved while the plaintiff was attempting to mount it resulted from a risk “inherent in the nature of the activity of horse riding.” Id. at 584. However, [**14] we did not explicitly base that conclusion upon the text of the Equine Activity Statute.
Perry’s argument is that a reasonable trier of fact could find the cause of her injury was not an inherent risk of equine activities, but negligence of the 4-H Club in staging the Round Robin Competition. Perry makes no argument that any of the exceptions to immunity spelled out in Indiana Code section 34-31-5-2(b) (“Section 2(b)”) — faulty equipment or tack, provision of the equine and failure to make reasonable and prudent efforts to match the participant to the particular equine and equine activity, a latent premises defect, reckless disregard, or intentional injury — apply in this case. Therefore, we must examine whether and to what extent, consistent with the Equine Activity Statute, an equine activity sponsor may be liable for simple negligence allegedly causing injury to a participant.
Initially we note that negligence of an equine activity sponsor neither is one of the exceptions to immunity listed in Section 2(b), nor is it included in the non-exclusive list of inherent risks of equine activity under Indiana Code section 34-6-2-69. Thus, Indiana’s Equine Activity Statute, like equine activity [**15] statutes in some states but unlike some others, is silent on the place of sponsor negligence in the overall scheme of equine liability. Compare Lawson v. Dutch Heritage Farms, Inc., 502 F.Supp.2d 698, 700 (N.D. Ohio 2007) (noting Ohio’s Equine Activity Liability Act, like some other states?, is “silent as to simple negligence as an inherent risk”) (quotation omitted); with Beattie v. Mickalich, 486 Mich. 1060, 1060 784 N.W.2d 38, 2010 Mich. LEXIS 1452, 2010 WL 2756979, at *1 (Mich., July 13, 2010) (per curiam) (Michigan’s Equine Activity Liability Act abolishes strict liability for equines but expressly provides liability is not limited “‘if the . . . person . . . [c]ommits a negligent act or omission that constitutes a proximate cause of the injury?” (quoting Mich. Comp. Laws § 691.1665)). Because it is as important to recognize what a statute does not say as what it does say, City of Evansville v. Zirkelbach, 662 N.E.2d 651, 654 (Ind. Ct. App. 1996), trans. denied, and [HN8] statutes granting immunity, being in derogation of the common law, are strictly construed, see Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 281 (Ind. 1994), we conclude the Equine Activity Statute was not intended by the general assembly [**16] to abrogate the cause of action for common-law negligence of an equine activity sponsor. However, pursuant to the clear text of the statute, a negligence action is precluded if the injury resulted from an inherent risk of equine activities and the facts do not fit one of the exceptions to immunity provided by Section 2(b). Stated differently, if none of the Section 2(b) exceptions apply, then an equine activity sponsor is not liable for failing to use reasonable care to mitigate an already inherent risk of equine activities that ultimately resulted in a participant’s injury.
[*940] Turning to Perry’s claim, she was injured when unexpectedly kicked by a horse that became agitated during the 4-H Club’s Round Robin Competition. The horse became agitated because another horse was standing too close nearby and began sniffing its rear, and to remove the danger to the child handling the other horse, Perry intervened. The statutory definition of “inherent risks of equine activities” includes, without limitation, “[t]he unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals,” and “[t]he propensity of an equine to behave in ways [**17] that may result in injury, harm, or death to persons on or around the equine.” Ind. Code § 34-6-2-69. Such risks directly caused Perry’s injury, in that the horse kicked as part of an unpredictable reaction to the other horse nearby and, Perry alleges, the close quarters and unfamiliar environment of the Show Barn. See Kangas v. Perry, 2000 WI App 234, 239 Wis.2d 392, 620 N.W.2d 429, 433 (Wis. Ct. App. 2000) (based on Wisconsin’s similar definition of inherent risks, concluding “horses? propensity to move without warning is an inherent risk of equine activity contemplated by the statute”), review denied. We therefore conclude Perry’s injury resulted from inherent risks of equine activities within the meaning of the Equine Activity Statute.
Perry argues the likelihood of a horse becoming agitated and kicking, and a child becoming endangered and needing to be rescued by a supervisor such as Perry, were unreasonably increased by the 4-H Club’s decision to hold the Round Robin Competition in the Show Barn, a cramped space unfamiliar to the horses. Even if that is true, however, the 4-H Club’s conduct would have contributed to Perry’s injury only by heightening the already inherent risk that a horse might [**18] behave unpredictably and in an injury-causing manner. Thus, Perry’s argument that her injury resulted not from an inherent risk of equine activities, but from the 4-H Club’s negligence in its manner of staging the Round Robin Competition, amounts to hair splitting irrelevant to the Equine Activity Statute. As explained above, the statute does not require that an equine activity sponsor’s alleged negligence in no way contribute to the injury complained of. Rather, the Equine Activity Statute only requires that, in order for immunity to apply, the injury must have resulted from broad categories of risk deemed integral to equine activities, regardless of whether the sponsor was negligent. See Ind. Code §§ 34-6-2-69; 34-31-5-1.
Perry also relies on cases from other jurisdictions that, while involving similar statutes, are distinguishable on their facts. In Steeg v. Baskin Family Camps, Inc., 124 S.W.3d 633 (Tex. App. 2003), review dismissed, the court held summary judgment for the defendant improper where there was evidence the proximate causes of the rider’s fall included the saddle slipping and the defendant’s negligent failure to secure the saddle. Id. at 639-40. In Fielder v. Academy Riding Stables, 49 P.3d 349 (Colo. Ct. App. 2002), [**19] cert. denied, the court held the defendant was not entitled to immunity where the defendant’s wranglers negligently failed to remove a screaming child from a horse, an “obvious danger” the wranglers had notice of well before the horse bolted. Id. at 351-52. Here, by contrast, there is no evidence the 4-H Club ignored an obvious, imminent danger or that Perry’s injury directly resulted from anything other than unpredictable horse behavior.
In sum, the facts viewed most favorably to Perry as the party opposing summary judgment show her injury resulted from inherent risks of equine activities and the 4-H Club was negligent, if at all, only for [*941] failing to mitigate those inherent risks. Therefore, the trial court properly concluded the Equine Activity Statute bars Perry’s claim and properly granted summary judgment to the 4-H Club.
There are no genuine issues of material fact that the 4-H Club complied with the warning sign requirements of the Equine Activity Statute and that Perry’s injury resulted from inherent risks of equine activities. Therefore, Perry’s claim is barred by the Equine Activity Statute and the trial court properly granted summary judgment to the 4-H Club.
FRIEDLANDER, [**20] J., and KIRSCH, J., concur.
Burd v. KL Shangri-La Owners, 2003 OK CIV APP 31; 67 P.3d 927; 2002 Okla. Civ. App. LEXIS 143; 74 O.B.A.J. 1109Posted: June 9, 2014
Burd v. KL Shangri-La Owners, 2003 OK CIV APP 31; 67 P.3d 927; 2002 Okla. Civ. App. LEXIS 143; 74 O.B.A.J. 1109
Georgia N. Burd, Plaintiff/Appellant, vs. KL Shangri-La Owners, L.P., Highgate Hotels, Inc., and Highgate Holdings, Inc., all d/b/a Shangri-La Resort and John Doe 1-3, Defendants/Appellees.
Case No. 98,235
COURT OF CIVIL APPEALS OF OKLAHOMA, DIVISION TWO
2003 OK CIV APP 31; 67 P.3d 927; 2002 Okla. Civ. App. LEXIS 143; 74 O.B.A.J. 1109
December 23, 2002, Decided
SUBSEQUENT HISTORY: [***1] Released for Publication December 23, 2002. As Modified March 25, 2003.
PRIOR HISTORY: APPEAL FROM THE DISTRICT COURT OF DELAWARE COUNTY, OKLAHOMA. HONORABLE ROBERT G. HANEY, TRIAL JUDGE.
DISPOSITION: Trial court’s grant of summary judgment reversed, and case remanded for further proceedings.
COUNSEL: Andrew B. Morsman, ANDREW B. MORSMAN, P.C., Tulsa, Oklahoma, For Plaintiff/Appellant.
Tracy Pierce Nester, LAW OFFICES OF LARRIET E. THOMAS, Oklahoma City, Oklahoma, For Defendants/Appellees.
JUDGES: OPINION BY JERRY L. GOODMAN, JUDGE. COLBERT, P.J., and RAPP, J., concur.
OPINION BY: JERRY L. GOODMAN
[**928] OPINION BY JERRY L. GOODMAN, JUDGE:
[*1] This is Georgia N. Burd’s (Patron) appeal from the trial court’s August 19, 2002, order granting summary judgment to all defendants on Patron’s petition for damages from personal injuries suffered while on defendants’ premises. The appeal was assigned to the accelerated docket pursuant to Okla.Sup.Ct.R. 1.36, 12 O.S. 2001, ch. 15, app. 1. Based upon our review of the facts and applicable law, we reverse and remand for further proceedings.
[*2] According to Patron’s petition, filed March 16, 2001, she was injured while on the premises owned by the above named corporate defendants (collectively, Shangri-La) on May 12, 1999. Patron was participating in [***2] a tennis tournament held at Shangri-La when she tripped over rolls of carpet stored next to the tennis court. The carpet rolls were hidden from plain view by hanging curtains. Shangri-La generally denied the allegations and raised the affirmative defenses of contributory negligence, assumption of the risk, failure to state a claim, and inadequate notice of a dangerous condition.
[*3] On May 9, 2002, Shangri-La filed a motion for summary judgment. The motion set out as evidentiary material a document executed by Patron and other members of her tennis league prior to the start of the tennis season. The document stated, in relevant part: 1
Waiver of Claims: . . . .
I agree; for myself, my executors, administrators, heirs and personal representatives; that all claims of any kind, nature [**929] and description are waived, including past, present and future claims, if any, for injuries sustained in traveling to or from, or participating in, local league play in a USTA/MVTA tennis league. I further agree to release any facility (including, but not limited to, private clubs or public parks), its officers or employees; and any personnel associated with the league itself (including officials, [***3] the district association, committees and employees; the USTA, its officers, committees and employees; and any sponsors of the local league). (Emphasis added.)
1 We note this document also serves as a roster sign up sheet and a promise to play by league rules and demonstrate good sportsmanship.
[*4] Shangri-La sought summary judgment on the basis of this exculpatory clause and also argued that it owed no duty to search for hidden traps or dangers on its premises to protect Patron, whom it characterized as a licensee upon the premises. Shangri-La introduced evidentiary material showing Patron was not registered as a guest at Shangri-La, and Shangri-La did not receive any remuneration for the use of its tennis facilities by Patron’s tennis league.
[*5] The trial court conducted a hearing July 3, 2002, and found as a matter of law:
that the document entitled “Missouri Valley Tennis Association Local League Player Waiver,” signed by Plaintiff, contains an exculpatory clause which is effective to relieve Defendants [***4] of and from any liability to Plaintiff for the injuries and damages alleged in this action.
The trial court then granted Shangri-La’s motion for summary judgment. Patron appeals. We reverse and remand for further proceedings.
[*6] As set out in Schmidt v. United States, 1996 OK 29, PP 8, 10, 912 P.2d 871, 874,
While these exculpatory promise-based obligations are generally enforceable, they are distasteful to the law. [HN1] For a validity test the exculpatory clause must pass a gauntlet of judicially-crafted hurdles: (1) their language must evidence a clear and unambiguous intent to exonerate the would-be defendant from liability for the sought-to-be-recovered damages; (2) at the time the contract (containing the clause) was executed there must have been no vast difference in bargaining power between the parties; and (3) enforcement of these clauses must never (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy. (Italics in original) (emphasis added).
Further, [***5] [HN2]
A contractual provision which one party claims excuses it from liability for in futuro tortious acts or omissions must clearly and cogently (1) demonstrate an intent to relieve that person from fault and (2) describe the nature and extent of damages from which that party seeks to be relieved.
[*7] In the case in controversy, Patron testified that when she executed the waiver at the beginning of the tennis season, she had no idea she would be playing league tennis at Shangri-La. Also, to her knowledge, this was the first time her Tulsa-area team had played there, though Patron had personally played there before. Indeed, Patron stated she “absolutely [did] not” intend to release Shangri-La when she executed the waiver, because at the time of the execution, the league teams had not even been formed, much less had a schedule or location of games been published. Further, Patron had no idea that Shangri-La would maintain what is arguably a hidden danger on its premises and therefore could not “describe the nature and extent of damages from which” Shangri-La now seeks to be relieved. We hold, as a matter of law, that the general, non-specific release of “any facility” was insufficient [***6] under Schmidt to relieve Shangri-La from liability.
[*8] We are not persuaded by Shangri-La’s attempts to distinguish Schmidt. Indeed we find Schmidt‘s three-prong analysis to test the validity of an exculpatory contract to be directly on point. While it is true Schmidt did not directly rule on an example of an exculpatory contract, it did answer certified federal questions of law as to how this court should analyze such a contract. Using the Schmidt criteria, we find [**930] Patron could not contract away Shangri-La’s liability, because (1) Patron did not know she would be playing at Shangri-La; (2) the identity of the tortfeasor was not known to her at the time of the contract; (3) there was no intent, and thus no meeting of the minds, to exculpate Shangri-La, and (4) the language of the exculpatory contract is vague and ambiguous.
[*9] Nor are we persuaded by Shangri-La’s reliance on Manning v. Brannon, 1998 OK CIV APP 17, 956 P.2d 156, decided one year after, and relying on, Schmidt. In the first instance, Shangri-La’s motion inaccurately sets out Manning‘s holding. Shangri-La declares Manning to stand for the proposition that Patron’s [***7] intent to execute a “waiver” is sufficient to relieve Shangri-La of liability. However, Manning holds as follows:
P7 The Oklahoma Supreme Court has long recognized that [HN3] exculpatory contracts, i.e., a contract to avoid liability for damages also known as a “waiver” or “release,” may be valid and enforceable. . . . That is to say, so long as (1) the intent to excuse one party from the consequences of his or her own negligence is expressed in clear, definite and unambiguous language . . . . (Emphasis added.)
[*10] Second, in Manning, a divided 2 Court of Civil Appeals Division I held an exculpatory contract signed or initialed by the plaintiff in 14 different places, after watching a video tape wherein an attorney explained in detail the consequences of the document that the plaintiff was about to sign which expressly named the defendant parachute instruction school, and which contained a release of liability, a covenant not to sue, an agreement to indemnify and hold harmless, and a paragraph describing in detail the risks being assumed by the plaintiff, was sufficient evidence of the plaintiff’s intent to absolve the school of liability.
2 The dissent in Manning noted that the record suggested the defendant parachute school may have recklessly packed plaintiff’s parachute, thus creating a jury question. A waiver should not, in the opinion of the dissenter, absolve a defendant from his reckless behavior.
[*11] [***8] In the case at bar, the general, nonspecific waiver signed by Patron is completely dissimilar to the detailed, explicit release in Manning. In the instant case, the identity of the possible tortfeasor is unclear, over broad, unnamed, and unknown. Further, the waiver fails to identify the risks being waived, the duration of the waiver, and is arguably ambiguous, given the fact that Patron’s signature could be construed as an acknowledgment of the rules of the tennis league, of the waiver of liability, or merely of an indication that she wished to be part of a particular tennis team. We therefore conclude the facts in the case on review are distinguishable from those of Manning, and decline Shangri-La’s invitation to affirm the trial court based upon Manning.
[*12] Because the trial court’s order clearly states the sole reason for its grant of summary judgment is the existence of the exculpatory clause which the trial court found as matter of law prevented Patron’s recovery, and because we have held such clause to be ineffective as to Shangri-La, we hold the trial court’s order must be reversed and the matter remanded to the trial court for further proceedings. [***9] The order makes no mention of undisputed material facts, or other reasons that, as a matter of law, would support the grant of summary judgment. Nor do we address the issue of Patron’s status as a licensee or invitee, and the respective duties owed to her by Shangri-La, because this was not part of the trial court’s stated basis for granting summary judgment.
[*13] REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
COLBERT, P.J., and RAPP, J., concur.
December 24, 2002