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Poorly written release gave the plaintiffs the only chance they had to win

Lucas v Norton Pines Athletic Club, Inc., 2010 Mich. App. LEXIS 1066

A release should be written to stop litigation, not encourage it.

Wood climbing wall at a camp in Wisconsin,USA

Wood climbing wall at a camp in Wisconsin,USA (Photo credit: Wikipedia)

In Lucas v. Norton Pines Athletic Club, Inc. the lawsuit stems from the plaintiff falling from the climbing wall in the club. The club was using auto-belay systems, which worked. However, the plaintiff failed to clip into the carabiner on the auto-belay.

When the plaintiff joined the athletic club, he signed a release titled Participant Release of Liability and Assumption of Risk Agreement. To climb on the climbing wall, he had to sign a second release titled Climbing Wall Release of Liability.

The first release, the general club release had a clause that stated release specifically did not cover claims “arising from the willful or wanton negligence of Norton Pines Athletic Club or its officers, agents, or employees.”

The defendant filed a motion for summary judgment based on the releases. The court granted the motion for summary judgment. The plaintiff appealed. The only issue was whether the actions of the defendant were willful or wanton negligence.

The factual issue giving rise to the willful and wanton claim was the club had rules on how to use the climbing wall. The rules required that a member of the club had to have an employee of the club clip them and out of the carabiner before and after climbing.

The plaintiff was an accomplished climber and had developed a routine where he would look at the employee on duty who would visually inspect the carabiner connection to his harness and not physical inspect it.

The plaintiff on this climb did not check with the employee and climbed. Approximately, 20’ up the wall he fell to the ground.

So?

Under Michigan’s law, a release stops claims for ordinary negligence but not for gross negligence. Willful and wanton negligence is the same as gross negligence under Michigan’s law. See Utah’s decision upholds a release for simple negligence but not gross negligence in a ski accident, Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter and Gross Negligence beats a release…but after the trial.

Willful or wanton negligence under Michigan’s law is “if the conduct alleged shows an intent to harm or if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does.”

One who is properly charged with recklessness or wantonness is not simply more careless than one who is only guilty of negligence. His conduct must be such as to put him in the class with the willful doer of wrong. The only respect in which his attitude is less blameworthy than that of the intentional wrongdoer is that, instead of affirmatively wishing to injure another, he is merely willing to do so. The difference is that between him who casts a missile intending that it shall strike another and him who casts it where he has reason to believe it will strike another, being indifferent whether it does so or not.”

Because the plaintiff’s only pleaded general negligence and reckless misconduct, the release stopped the claims. On top of that, there was no evidence that the club employee acted intentional or affirmatively, only negligently.

So Now What?

There were two major mistakes in this case that in another state or even another judge could have gone the wrong way.

First never tell the person signing your release how to sue you. You want the release to say to everyone who signs it, that you cannot be sued. If you tell them in the release, the release is not good against X, Y and Z, the claims of the plaintiff will be pled to show you did X, Y and Z. Why not, the plaintiff has nothing to lose. But, for the education you provided in the release, you would not have been sued.

Second if you make rules, they cannot be ignored. More so, when the rules you make are tied to your release. Here, the rule was that employees have to clip people in. If you make a rule, and you do not follow it, you set yourself up for a lawsuit.

Releases work if you do not do something that voids them. Always make sure when you have your release written that everything makes sense and does not create a situation where you can void your own release.

What do you think? Leave a comment.

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