Kentucky appellate court upholds the use of a release to stop claims from injuries using a zip line.

Plaintiff did not make very good arguments, and court pointed that out.

Bowling v. Mammoth Cave Adventures, LLC (Ky. Ct. App. 2020)

State: Kentucky: Commonwealth of Kentucky Court of Appeals

Plaintiff: Billy D. Bowling

Defendant: Mammoth Cave Adventures, LLC

Plaintiff Claims: (1) an employee of MCA negligently misrepresented that he could zip line despite being over the weight limit, (2) MCA was negligent in not lighting the course or landing area, and (3) the doctrine of equitable estoppel applies.

Defendant Defenses: Release

Holding: For the Defendant

Year: 2020

Summary

Release was sufficient to bar the claims of the plaintiff injured when arriving at the landing platform. More importantly, since the plaintiff did not argue any reasons why the release was invalid; the court really did not review the issues. Did the release the four requirements to be valid under Kentucky law, which it did? Case closed.

Facts

Facts are sparse, but then so is the legal arguments made by the plaintiff.

On June 10, 2017, Bowling went to MCA to zip line with his friends. Before engaging in the activity, Bowling signed a release of liability. Bowling injured his right ankle when approaching the landing platform.

The plaintiff then sued for negligence arguing “the zip lining course and landing ramp were unlit, which resulted in his injury.” There are also statements in the decision that there was a weight limit for people riding the zip line, but it was not a fact argued by the plaintiff.

The trial court granted the defendants motion for summary judgement, and the plaintiff appealed.

Analysis: making sense of the law based on these facts.

There were only two legal issues discussed by the appellate court. The first was whether the release was valid and stopped the plaintiff’s claims. Under Kentucky law, for a release to be valid.

…a preinjury release will be upheld only if (1) it explicitly expresses an intention to exonerate by using the word “negligence;” or (2) it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party’s own conduct; or (3) protection against negligence is the only reasonable construction of the contract language; or (4) the hazard experienced was clearly within the contemplation of the provision. “Thus, an exculpatory clause must clearly set out the negligence for which liability is to be avoided.”

However, the plaintiff failed to argue that the release did not meet the Kentucky requirements. The plaintiff raised no arguments that the release was not valid so the appellate court properly accepted the trial courts decision that it was. “Bowling fails to assert why the agreement at issue is unenforceable.”

The next issue was even a shorter discussion. The plaintiff brought up on appeal the issue that the release was void based on an estoppel argument. However, since that argument had not been raised in the lower court, it could not be argued on appeal. “It is axiomatic that a party may not raise an issue for the first time on appeal.

There was also a dissent to the opinion. The dissent made several arguments that the case should be sent back because the allegations in the complaint rose to the level of willful and wanton actions, which would not be covered by the release.

The dissent also made an argument that the release did not fully tell the plaintiff of the possible risks.

The release uses only the word “negligence.” The release does specifically and explicitly release MCA from liability for ordinary negligence claims. The language of the release is specific as to its purpose to exonerate MCA from ordinary negligence liability only. The release specifically warns that zip line activity is dangerous, without any detailed explanation or discussion.

We are seeing more cases with this argument. That a release needs more than just the legal clause that releases the defendant from his or her own negligence. The release also needs to explain the dangers of the activity to the possible plaintiff.

The final argument seems to be an extension of the above argument, that the release needs to point out specific risks to the signor.

Additionally, Bowling alleges there was no lighting on the landing, which is also a disputed factual issue, which would make an inherently dangerous activity even more dangerous. If true, this would clearly be an enhancement to the danger of the activity that would require, at minimum, disclosure and perhaps a warning. The release makes no reference to the lack of lighting on the landing and its enhancement of the dangerous activity.

So Now What?

Looking at a dissenting opinion does not help much in learning current law. The defendant won. However, the dissenting opinion can be important in making sure your release is up to any possible future changes to the law.

If the dissenting judge has more judges join the court that agree or the dissenting judge convinces other judges that his opinion has some important points, the dissent could be a majority opinion in the future. A win now, might not be a win in the future if your release is written to meet the needs of the law today and the possible changes in the law tomorrow.

What do you think? Leave a comment.

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here.

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By Recreation Law    Rec-law@recreation-law.com    James H. Moss

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