New Hampshire does not recognize more than one type of negligence, simple or ordinary negligence. Claims for gross negligence, say to void a release, do not exist.Posted: February 6, 2017
Supreme Court outlines requirements for releases. to be successful including public policy and failure to read the release requirements.
State: New Hampshire, Supreme Court of New Hampshire
Plaintiff: John E. and Virginia A. Barnes
Defendant: New Hampshire Karting Association (NHKA), David E. Whitesell, Midway Raceway, Inc. d/b/a Bryar Motorsport Park (Bryar), the World Karting Association (WKA) and International Insurance Company (International)
Plaintiff Claims: negligence and gross negligence
Defendant Defenses: release
Holding: for the defendant
The plaintiff went to a go kart event. He signed a pit pass which contained a release. While driving he hit another kart on the track that was disabled. There was no indication or warning of the disabled go-kart before the plaintiff hit it.
The plaintiff sued for ordinary and gross negligence. The lower court dismissed the plaintiff’s claims, and the plaintiff appealed.
New Hampshire has three courts; however, the lower two, Circuit and Superior handle different matters. Both the Circuit court and the Superior courts are trial courts so any appeal is to the New Hampshire Supreme Court.
Analysis: making sense of the law based upon these facts.
The plaintiff claimed the release was barred by public policy; the release was ambiguous and did not apply to the risks, not inherent in the sport. The plaintiff also argued the release did not cover gross negligence.
The New Hampshire Supreme Court first looked at releases in New Hampshire.
Exculpatory agreements call into conflict two tenets of the law. First, a party should be liable for the consequences of the negligent breach of a duty owed another. As this court stated in a recent case involving an amusement ride accident, the owner of a place of public amusement “must exercise that degree of care which, under the same or similar circumstances, would be exercised by an ordinarily careful or prudent individual.” Failure to do so will result in liability for injuries proximately caused by the breach of duty.
However, parties may eliminate tort liability by contract.
Contraposed against this basic rule of tort law is the principle that, as a matter of efficiency and freedom of choice, parties should be able to contract freely about their affairs. Under this rule, parties may bargain for various levels of risk and benefit as they see fit. Thus, a plaintiff may agree in advance that the defendant has no legal duty toward him and thereby assume the risk of injury arising from the defendant’s conduct.
Under New Hampshire law, a defendant must show the release does not contravene public policy, that no special relationship existed between the parties and there was no disparity of bargaining power.
A defendant seeking to avoid liability must show that the exculpatory agreement does not contravene public policy; i.e., that no special relationship existed between the parties and that there was no other disparity in bargaining power. Where the defendant is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service, the defendant cannot by contract rid itself of its obligation of reasonable care.
Public policy, not identified as such, is held to include common carriers, innkeepers and public utilities. A go-kart operation is not a commercial transport for hire, a place to sleep or a public utility providing gas, electricity or such.
Disparity in bargaining power occurs when the defendant is a monopoly or where the plaintiff has no alternative but to deal with the defendant. “Where there is a disparity in bargaining power, the plaintiff may not be deemed to have freely chosen to enter into the contract; accordingly, courts refuse to enforce the agreement.”
Again, a go-kart facility is not a necessity such that the plaintiff had to negotiate for its life or substance.
Once the public policy argument is out of the way, the issue then becomes whether the plaintiff understood the basics of the agreement.
Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that a reasonable person in his position would have known of the exculpatory provision. Furthermore, the plaintiff’s claims must have been within the contemplation of the parties at the time of the execution of the agreement.
This contemplation must not cover the exact issues the plaintiff complains about, but covers a broad range of accidents or injuries the plaintiff may suffer.
Contracts are generally construed against the writer, in the case of a release, construed against the defendant.
…the contract must clearly state that the defendant is not responsible for the consequences of his negligence. As long as the language of the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence, the agreement will be upheld.
The plaintiff argued he did not read the entire release; however, that does not invalidate the release. The court found he could have if he wanted, therefore, his argument failed based on his own actions.
There was no evidence, however, that Barnes was denied the opportunity to read the body of the release. “[H]aving failed to avail himself of that opportunity, yet gaining the admission to which his signature was a condition precedent, he cannot now complain that he had no notice of the import of the paper . . . he signed.”
Summing up the public policy argument made by the plaintiff failed as stated by the court
With these principles in mind, we now consider whether the release bars the plaintiff’s claims in this case. The first question is whether the release is contrary to public policy. The defendants do not fall within any of the commonly-recognized classes of persons charged with a duty of public service. The record indicates that the 1981 Enduro kart races at Bryar were organized by the NHKA, which is associated with the WKA and which manages its races in accordance with WKA rules and regulations. Although the defendants serve a segment of the public, we cannot say that Enduro kart racing is affected with a public interest. Provision of racing facilities is not a service of great importance to the public, nor is racing a matter of practical necessity.
Moreover, there was no substantial disparity in bargaining power among the parties, despite the fact that Barnes was required to sign the release in order to use the racetrack. The plaintiff was under no physical or economic compulsion to sign the release. Since the defendants’ service is not an essential one, the defendants had no advantage of bargaining strength over Barnes or others who sought to participate in Enduro kart racing.
Thus the release was not barred by public policy arguments in New Hampshire.
The plaintiff then argued that the actions against the defendant were grossly negligent and cited cases from other jurisdictions to support its claim. The court simply stated:
These cases are inapposite because New Hampshire law does not distinguish causes of action based on ordinary and gross negligence. “[T]he doctrine of definitive degrees of negligence is not recognized as a part of our common law.
There is only one claim in New Hampshire for negligence no matter egregious the defendants’ actions.
The plaintiff then argued the release was only valid for a restricted area of the facility. However, applying the common meaning to the language in the release the court found the language covered the area where the accident occurred.
We find that participation in practice laps on the racing surface comes within the terms of the release. The restricted areas are defined in terms of physical spaces, not in terms of function, and the reference to “enter[ing] for any purpose” contemplates that the racing surface is a restricted area during practice runs and during the actual race. Although the plaintiff testified that he had practiced on occasion without signing a release, he signed the release prior to taking a practice lap on the day in question. One can contemplate that racers are exposed to a variety of hazards while in the racing arena regardless of whether the actual race is taking place. We believe that the practice run taken by Barnes in preparation for the race later that day may reasonably be construed as part of “participat[ion] in the event.” We therefore uphold the master’s conclusion that the language of the agreement was not ambiguous and that the release applied to practice laps.
A final argument was made that the release was an “illegal tying arrangement.” Meaning the release and the insurance coverage were illegally tied together the plaintiff could not take one without taking the other. The court found this was not the case because no evidence was presented that insurance was a separate charge after admissions.
The trial court decision was affirmed.
So Now What?
New Hampshire law is fairly standard on how it looks at release law, even though the particular language used might vary. What is significant is the Supreme Court has held that New Hampshire does not recognize gross negligence.
Not being able to plead gross negligence limits the ability of the plaintiff to void a release or argue for greater damages. Normally a jury finding the defendant acted grossly negligent includes greater damages, sometimes punitive damages.
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