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Lathrop vs. Century, Inc., 2002 Iowa App. LEXIS 1136

Lathrop vs. Century, Inc., 2002 Iowa App. LEXIS 1136

Pamela J. Lathrop, Individually and as Next Friend of D. Scott Lathrop, a Minor, and Sarah N. Lathrop, a Minor, Plaintiffs-Appellants, vs. Century, Inc., d/b/a Mt. Crescent, Defendant-Appellee.

No. 2-243 / 01-1058

COURT OF APPEALS OF IOWA

2002 Iowa App. LEXIS 1136

October 30, 2002, Filed

NOTICE:

NO DECISION HAS BEEN MADE ON PUBLICATION OF THIS OPINION. THE OPINION IS SUBJECT TO MODIFICATION OR CORRECTION BY THE COURT AND IS NOT FINAL UNIL THE TIME FOR REHEARING OR FURTHER REVIEW HAS PASSED. AN UNPUBLISHED OPINION MAY BE CITED IN A BRIEF; HOWEVER, UNPUBLISHED OPINIONS SHALL NOT CONSTITUTE CONTROLLING LEGAL AUTHORITY.

PRIOR HISTORY: Appeal from the Iowa District Court for Pottawattamie County, Timothy O’Grady, Judge. The plaintiffs appeal from the district court’s grant of summary judgment in favor of the defendant.

DISPOSITION: Affirmed.

 

COUNSEL: James E. Harris and Britany S. Shotkoski of Harris Feldman Law Offices, Omaha, Nebraska, and Laura Laubenthal Pattermann of Law Offices of Gallner & Pattermann, P.C., Council Bluffs, for appellants.

John M. McHale of Peters Law Firm, P.C., Council Bluffs, for appellee.

JUDGES: Heard by Hecht, P.J., and Vaitheswaran and Eisenhauer, JJ.

OPINION BY: HECHT

OPINION

HECHT, P.J.

The plaintiffs appeal from a district court order granting defendant’s motion for summary judgment. We affirm.

I. BACKGROUND FACTS AND PROCEEDINGS

On December 30, 1999, Pamela Lathrop and her two minor children, Scott and Sarah, visited the Mt. Crescent tubing park. Before they were allowed to enter the premises, [*2] they signed a form entitled “Release and Waiver of Liability Assumption of Risk and Indemnity Agreement.” Key portions of the release read as follows.

In consideration of being permitted to compete, officiate, observe, work for, or participate in any way in the EVENT(S) (i.e., snow-tubing, skiing, snowboarding), being permitted to enter for any purpose any RESTRICTED AREA (defined as any area requiring special authorization, credentials, or permission TO enter or an area to which admission by the general public is restricted or prohibited), EACH OF THE UNDERSIGNED, for himself, his personal representatives, heirs, and next of kin:

. . . .

2. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the . . . operators, owners, officials . . . of premises used to conduct the EVENT(S) (i.e., snow-tubing, snowboarding, skiing) . . . FROM ALL LIABILITY TO THE UNDERSIGNED, his personal representatives, assigns, heirs, and next of kin FOR ANY AND ALL LOSS OR DAMAGE, AND ANY CLAIM OR DEMANDS THEREOF ON ACCOUNT OF INJURY TO THE PERSON OR PROPERTY OR RESULTING IN DEATH OF THE UNDERSIGNED ARISING OUT OF OR RELATED TO THE EVENT(S) (i.e., snow-tubing, snowboarding, skiing) WHETHER CAUSED [*3] BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.

. . . .

4. HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE arising out of or related to the EVENT(S) (i.e., snow-tubing, snowboarding, skiing) whether caused by the NEGLIGENCE OF RELEASEES OR OTHERWISE.

5. HEREBY acknowledges that THE ACTIVITIES OF THE EVENT(S) (i.e., snow-tubing, snowboarding, skiing) ARE VERY DANGEROUS and involve the risk of serious bodily injury and/or death and/or property damage. . . .

6. HEREBY agrees that this Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement extends to all acts of negligence by the Releasees . . . and is intended to be as broad and inclusive as is permitted by the law of the County or State in which the EVENT(S) (i.e., snow tubing, snowboarding, skiing) is/are conducted and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect.

I HAVE READ THIS RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT, FULLY UNDERSTAND ITS TERMS, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND HAVE SIGNED IT FREELY [*4] AND VOLUNTARILY WITHOUT ANY INDUCEMENT, ASSURANCE, OR GUARANTEE BEING MADE TO ME AND INTEND MY SIGNATURE TO BE A COMPLETE AND UNCONDITIONAL RELEASE OF ALL LIABILITY TO THE GREATEST EXTENT ALLOWED BY LAW.

All three signed the form. They entered, and took several trips up and down the hill. After they had been snow tubing for roughly an hour, Pamela, on a trip down the hill, traveled faster than she expected. She went over a bump at a high speed, became airborne and was thrown from the snow tube. She landed on her back and hit her head on the ramp. She was later diagnosed with a compression/explosion fracture of L2 with canal compromised.

Pamela, individually and on behalf of her two children, filed a lawsuit against Mt. Crescent alleging negligence. Mt. Crescent moved the court for summary judgment. The district court granted this motion and dismissed the case on June 18, 2001. Plaintiffs appealed, alleging the district court erred in granting summary judgment to the defendant.

II. STANDARD OF REVIEW

[HN1] A grant of summary judgment is reviewed for correction of errors of law. Wright v. American Cyanamid Co., 599 N.W.2d 668, 670 (Iowa 1999). “Summary [*5] judgment is only appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.” Id. “We review the record in the light most favorable to the party opposing summary judgment, and the moving party carries the burden of showing the absence of a material fact issue.” Id. (citations omitted).

III. ANALYSIS

Lathrop makes six allegations of error by the district court in granting summary judgment. We will address each in turn.

A. The release is ambiguous. Lathrop argues that the language of the release is ambiguous. Specifically, she contends the references in the release to “EVENT” and “RESTRICTED AREA” are subject to differing interpretations. For example, she argues “EVENT” can be understood to refer to a competition or special occurrence, and that she never participated in a competition while at Mt. Crescent. She also argues that “RESTRICTED AREA” is ambiguous and that she at no time entered any restricted areas, as she understood them. She contends then, that the district court erred by applying the terms of the release to her. We, however, find no error by the district court. The two terms Lathrop [*6] points to are defined in the release. An “EVENT” is defined as “snow tubing, snowboarding, [or] skiing” and “RESTRICTED AREA” is defined as “any area requiring . . . permission . . . to enter or an area to which admission by the general public is restricted or prohibited.” There is no doubt that Lathrop participated in snow tubing. Lathrop entered a restricted area, as defined by the release, when she entered the tubing park. She was not allowed to enter until she paid the admission price and signed the release and the area was therefore restricted from the general public. We find no error with the district court’s conclusion that the release applied to Lathrop.

B. Lathrop’s lack of awareness of the risks involved in snow tubing rendered the release void. Lathrop acknowledges that Korsmo v. Waverly Ski Club, 435 N.W.2d 746 (Iowa Ct. App. 1988) provides the guiding principles when determining the applicability of releases. [HN2] “Parties need not have contemplated the precise occurrence which occurred as long as it is reasonable to conclude the parties contemplated a similarly broad range of accidents.” Id. at 749. Lathrop, however, contends [*7] she was unaware of the risks involved in snow tubing because she had never snow tubed before. She argues that she could not, and did not, contemplate the accident that occurred while she was snow tubing at Mt. Crescent. She contends then that the district should have permitted a jury to decide whether this type of accident was within her contemplation. We conclude a reasonable juror could not find the Lathrop’s assertion of ignorance plausible. One need not be an experienced snow tuber to anticipate that, while sliding down a snow-covered hill at a fast rate on an inflated tube, one might be thrown from the tube. Accordingly, we find no error on this issue by the district court.

C. The release is contrary to applicable provisions of Iowa Code chapter 88A and is void and unenforceable. Lathrop argues Mt. Crescent is a carnival and the tubing sponsored by Mt. Crescent is an amusement device or ride as contemplated by Iowa Code chapter 88A (2001). Because the statute requires carnivals to carry liability insurance, Lathrop argues it is against public policy to allow them to waive their liability in a release.

Mt. Crescent contends Lathrop failed to preserve error on this [*8] issue. Lathrop first raised this issue in her supplemental resistance to Mt. Crescent’s motion for summary judgment, presented to Mt. Crescent a mere four days before the scheduled hearing. It was argued in the hearing, and the district court ruled on it. We conclude the issue was preserved for our review.

Iowa Code section 88A.1 defines a carnival as [HN3] “an enterprise offering amusement or entertainment to the public in, upon, or by means of amusement devices or rides or concession booths.” Clearly, Mt. Crescent offers entertainment and amusement. The question, then, is whether it accomplishes this by means of amusement devices or rides. [HN4] An amusement device is “any equipment or piece of equipment, appliance or combination thereof designed or intended to entertain or amuse a person.” Iowa Code § 88A.1 (2001). An amusement ride is “any mechanized device or combination of devices which carries passengers along, around, or over a fixed or restricted course for the purpose of giving its passengers amusement, pleasure, thrills or excitement.” Iowa Code § 88A.1. The [HN5] snow tubing runs at Mt. Crescent are not mechanized [*9] and do not carry its passengers over a fixed or restricted course. We agree with the ruling of the district court that the Mt. Crescent snow tubing facilities do not fall under the definition of carnival or amusement ride or device in Iowa Code section 88A. We therefore need not decide whether the provisions of this code chapter implicitly preclude the use of releases of liability by such facilities.

D. This release falls within a public policy exception to the general enforceability of releases. [HN6] “Contracts exempting a party from its own negligence are enforceable, and are not contrary to public policy.” Huber v. Hovey, 501 N.W.2d 53, 54 (Iowa 1993). Despite this clear statement from our supreme court, Lathrop argues the Mt. Crescent release falls within a public policy exception to this rule. Lathrop relies upon language found in Bashford v. Slater, 250 Iowa 857, 96 N.W.2d 904 (Iowa 1959) and Baker v. Stewarts’ Inc., 433 N.W.2d 706 (Iowa 1988). Both of these cases acknowledge the possibility of an exception to the general enforceability of releases in Iowa, but neither case finds a public policy exception [*10] applicable. Baker provides guidance for the recognition of a public policy exception. [HN7] “We will not ‘curtail the liberty to contract by enabling parties to escape their valid contractual obligation on the ground of public policy unless the preservation of the general public welfare imperatively so demands.'” Id. at 707 (quoting Tschirgi v. Merchants Nat’l Bank of Cedar Rapids, 253 Iowa 682, 113 N.W.2d 226, 231 (Iowa 1962). While the court in Baker does not provide a precise framework for analyzing the appropriateness of a public policy exception in a specific situation, it does suggest, as an example, that a professional providing a service of great importance to the public would not be allowed to contract to avoid liability for negligence. See id. We conclude [HN8] snow tubing, a purely recreational activity, is not of such great importance to the public as to justify an exception to the general rule. The district court did not err by failing to recognize a public policy exception to the general enforceability of releases of liability in this case.

E. If the release is enforceable, it only releases Mt. Crescent from unavoidable and inherent [*11] risks of snow tubing. Lathrop argues that if the exculpatory contract is enforceable, it only releases Mt. Crescent from unavoidable and inherent risks of snow tubing and not from unnecessarily dangerous conditions or general negligence. However, Lathrop cites no controlling authority for the proposition that broad exculpatory contracts which purport to release the drafters from “all liability … for any and all loss or damage … arising out of snow tubing … whether caused by the negligence of releasees or otherwise” should not be interpreted as written. [HN9] The appellate courts of this state have consistently upheld the validity of broadly worded releases. See Huber, 501 N.W.2d at 55; Bashford, 96 N.W.2d at 909-910; Weik v. Ace Rents, 249 Iowa 510, 87 N.W.2d 314, 317 (Iowa 1958); and Korsmo, 435 N.W.2d at 748. We find no error by the district court for applying the clear language of the release.

F. The children’s claims cannot be dismissed because a parent cannot waive a child’s future cause of action. The final claim of district court error urged by Lathrop is that the district court erred by dismissing [*12] Lathrop’s children’s causes of action. She argues that a parent cannot waive a child’s right to bring a future cause of action. However, as Lathrop acknowledges in her brief, the [HN10] district court did not address this issue in its ruling. Lathrop did not move the court to enlarge its findings under Iowa Rule of Civil Procedure 1.904(2). Therefore, Lathrop has failed to preserve error on this issue and cannot raise it now on appeal. State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206-207 (Iowa 1984).

IV. CONCLUSION

We conclude the district court committed no legal error in granting Mt. Crescent’s motion for summary judgment, and therefore affirm.

AFFIRMED.

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