Poorly written release on a sign-in sheet barely passes protecting Ohio defendant swimming area from suit.Posted: August 15, 2016 Filed under: Ohio, Release (pre-injury contract not to sue), Swimming | Tags: drowning, Lifeguard, Ohio, Reckless, Release, Sign in Sheet, swimming, Willful & Wanton Leave a comment
Willful and Wanton actions by a defendant are hard to prove unless the defendant actually did something. Mere failure to do something is rarely a willful and wanton act; it requires an act to prove.
Bishop vs – Nelson Ledges Quarry Park, Limited, et al., 2005-Ohio-2656; 2005 Ohio App. LEXIS 2504
State: Ohio, Court of Appeals of Ohio, Eleventh Appellate District, Portage County
Plaintiff: Robert Bishop, Executor of the Estate of Eric E. Bishop, Deceased, et al.,
Defendant: Nelson Ledges Quarry Park, Limited, et al.,
Plaintiff Claims: The trial court erred in failing to apply the standards for determination of motions for summary judgment. The trial court erred in granting summary judgment in favor of appellee Nelson Ledges Quarry Park, Ltd. based on alleged lack of possession or control of leased premises. The trial court erred in granting summary judgment for appellees on the ground that a valid release executed by Eric Bishop released appellees from liability.”
Defendant Defenses: Release
Holding: For the Defendant
The deceased was an 18-year-old man who went swimming at the plaintiff’s swimming area with several other friends. Nelson Ledges is like many swimming “holes” in Ohio, old quarries that have flooded or dammed areas that are privately owned and turned into swimming, camping and boating recreation areas. They are open to the public, like this one, for a fee. Here the fee was $5.00 per person.
Upon arriving at the defendants, the decedent and his friends paid their fee and signed a release. From the description, the release might have been on a sign-in sheet. Besides being on a sign-in sheet with multiple signatures, it was poorly written.
The deceased and his friends skipped the beach where a life guard was located and went to another area that people did swim. The deceased and a few friends swam out to an island; however, the deceased did not make it, drowning 15’ from the island shore.
The decedent’s estate sued. The defendants filed a motion for summary judgment, which was granted. The trial court held:
That, even when reviewing all of the evidence in the light most favorable to the plaintiff, including the report of Tom Griffiths, defendants’ conduct did not rise to a level of reckless, willful or wanton conduct, but at most, suggested there may be a genuine issue of material fact as to negligence. 3) The waiver was valid, as a matter of law, thus, Eric waived all claims of negligence, and Bishop was barred from recovering on the wrongful death claim.
The plaintiff’s appealed.
Analysis: making sense of the law based on these facts.
The court first set forth the requirements to prove a wrongful-death claim.
1) a wrongful act, neglect or default of defendant which proximately caused the death and which would have entitled the decedent to maintain an action and recover damages if death had not ensued; 2) that a decedent was survived by a spouse, children, parents, or other next of kin; and 3) that the survivors suffered damages by reasons of the wrongful death.
Than the Court took the arguments out of order, from the plaintiff’s appeal, starting with the validity of the release. (Ohio’s law is probably the most supportive of all states on release law.)
It is well-settled in Ohio that participants in recreational activities and the proprietor of a venue for such an activity are free to enter into contracts designed to relieve the proprietor from responsibility to the participant for the proprietor’s acts of negligence, but not for his willful or wanton misconduct.
Clauses limiting liability shall ordinarily be construed strictly against the drafting party. Moreover, matters involving the interpretation of contract terms, when such terms are unambiguous, are questions of law.
The issue then was whether the acts of the defendants were willful and wanton, which would void the release. The court first looked at the release which it found wanting to an extent. “While inartfully drafted, the sheet Eric signed is clearly labeled at the top as a “Liability Waiver Form” in bold type.”
The court followed up a review of the release with this statement.
…although “the better practice would certainly be to expressly state the word ‘negligence’ somewhere in the exculpatory provision the absence of that term does not automatically render the provision fatally flawed.
The plaintiff also argued the release was no clear because the type was small. However, the court found this argument not to be valid under Ohio’s law and not an issue in this case.
Ohio has no such provisions. While we agree in broad principle that contract provisions, particularly those which purport to waive liability, should be printed in type large enough for a person of normal vision to read easily, the waiver in the case at bar satisfies these requirements. As we already mentioned, we find the terms of the waiver in this case were sufficiently clear to put the person signing it on notice. We agree with the trial court that Eric effectively waived all claims based on negligence by signing the waiver form. Thus, Bishop’s third assignment of error is without merit.
The court found the release to be valid and blocked the negligence claims of the plaintiff’s. The court then looked at the plaintiff’s argument that the actions of the defendants were willful and wanton.
Willful and wanton misconduct has been defined by the Ohio Supreme Court as the equivalent to reckless conduct. An actor’s conduct is reckless when “he does an act or intentionally fails to do an act which it is his duty *** to do, knowing or having reason to know of facts which could lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.” “An act is negligent if it ‘falls below a standard established by the law for the protection of others against unreasonable risk of harm.” While the act must be intended by the actor to be reckless, “the actor does not intend to cause the harm which results from it.”
Consequently, the court found the actions did not rise to the level of being willful and wanton.
The plaintiff also argued, through its expert witness that the release was void for violating several state and county rules and regulations. The court spent a fair amount of time reviewing this and basically said not a chance.
The first regulations were not in place at the time of the accident, so they could not be used to prove negligence. “This court has held that “subsequent remedial measures are not admissible to prove negligence or culpable conduct in connection with the event at issue.”
The next issue was the health department of the county where the accident occurred, based upon a state statute issued regulations requiring additional lifeguards and life boats. The court again through this out because the statute did not require it, and the health department did not have statutory requirement to issue safety rules. (This section seemed down right fishy!)
A plain reading of both statutes clearly indicates that neither expressly delegates to public health departments the authority to regulate public swimming areas. Moreover, even if we were to presume that public swimming areas fell under the ambit of the more general authority of R.C. 3709.21, the authority to regulate under this statute is limited only to public health matters, and not matters of public safety.
The court then when back and looked at the willful and wanton conduct issue because the decedent was a business invitee under Ohio’s Land Owner Liability laws.
The threshold issue in determining willful and wanton misconduct is to determine what legal duty Kelley owed Eric as a visitor to the park. Since Eric paid an admission charge to Kelley for the purpose of swimming at the park, it is clear that Eric was a business invitee on the day of his drowning. The Supreme Court of Ohio has defined a business invitee as “one rightfully on the premises of another for the purposes in which the possessor of the premises has a beneficial interest.”
A landowner owes a business invitee the duty to exercise ordinary care and to maintain the premises in a safe condition.
Under common law, the duty owed by an owner of a premises to a business invitee is to “exercise ordinary care and to protect [the invitee] by maintaining the premises in a safe condition.
Again, the court could not find the actions of the defendants amounted to willful and wanton care.
The difference between negligence and willfulness is a difference in kind and not merely a difference in degree *** in order to establish wantonness; the conduct must be supported by evidence that shows a disposition to perversity, such as acts of stubbornness, obstinacy or persistency in opposing that which is right, reasonable, correct or generally accepted as a course to follow in protecting the safety of others”) (emphasis added). Though the circumstances surrounding Eric’s death are, indeed, unfortunate, “willful conduct implies design, set purpose, intention, or deliberation,” and “wanton conduct comprehends an entire absence of all care for the safety of others and a complete indifference to the consequences of the allegedly negligent act.”
There were two dissenting opinions in the case. Both dissenting judges approved the majority’s reasoning in counts one and three of the opinion. However, they both found fault with the second count. The second issue was the requirements by the state to have more lifeguards and a boat on the water. One found the way the argument was raised was insufficient; the second found that there was a genuine issue of fact.
So Now What?
You know you have a bad release when an appellate court tells you so. In this case the defendant squeaked by and still won. The release language needed to be corrected, by an attorney. The release needed to be in larger print and now as a sign-in sheet but as a proper release. The decision also mentioned the decedent, and his friends were not given a copy of the release.
The other issue was the rules adopted by the county and the state. It does not matter who adopts the rules, State, County or if labeled standards groups of people, if they require you to operate a different way, you better change your ways. Here two judges felt the case should be sent back to trial, even though the way the rules were implemented was declared invalid by the majority.
You may not have the luxury of having a court tell you those rules you can ignore. If it is issued by someone with a seal in the letterhead, you better follow it.
The defendant got luck in this one.
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Author: Outdoor Recreation Insurance, Risk Management and Law
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