Release stops most of the litigation against a ski area and USA Cycling in a Mountain Bike race but leaves other members out in the cold or should I say stuck in the courtroom
Posted: September 26, 2011 Filed under: Cycling, Release (pre-injury contract not to sue) Leave a commentLloyd v. Bourassa, 2002 Me. Super. LEXIS 132
Several mistakes in the process would have doomed this case for the defendants in other states.
The plaintiff became a member of USA Cycling and NORBA (National Off Road Bicycle Association). While becoming a member, he signed an Acknowledgement of Risk and Release of Liability Form. Later, that summer he traveled to Sugarloaft Mountain Ski Area and entered a mountain-bike race. To enter the race, he signed an Official Entry Form which included language under the heading Athlete’s Entry & Release Form.
During a practice run the plaintiff collided with another racer Bourassa sustaining injuries. He sued USA Cycling, Sugarloaf and the other racer Bourassa. The plaintiff claimed all three were negligent. The defendants Sugarloaf and USA Cycling responded with the defenses of release. This decision came from the parties’ motions for Summary Judgment on the issue of whether the release signed by the plaintiff prevented him from suing Sugarloaf and USA Cycling…..but not the other racer Bourassa.
Summary of the case
The first issue that the court reviewed was whether U.S.A. Cycling was covered under its release. When Lloyd joined the organization, he joined the United States Cycling Federation (USCF). Soon thereafter the USCF merged into a new corporation U.S.A. Cycling. The old release used the name United States Cycling Federation (USCF) as the party to be protected. The plaintiff argued that U.S.A. Cycling was not protected because it was not named in the release.
However, the court found the language of the Sugarloaf release covered U.S.A. Cycling because it referred to sponsors of the event, and NORBA was a sponsor of the race. NORBA was a subsidiary of U.S.A. Cycling so U.S.A. Cycling was protected as part of Sugarloaf’s release.
The court then looked at the plaintiff’s argument that training run was not covered under the release. Again, only an interpretation of the release by the court saved the defendants again. The court found that since the training run was a mandatory part of the event, it was covered under the event.
The plaintiff then made the old argument that the release did not cover the event because releases are disfavored. The court simply stated that although Maine disfavors releases, that disfavor means releases will be strictly interpreted rather than prohibited. The court then found that the plaintiff was not compelled to sign the release, he signed all releases, but mainly the Sugarloaf release of his own free will.
Lloyd was not compelled to sign either release. He chose to sign both because he wanted to participate in an inherently risky sport. He is free to make such choices, but must also accept responsibility for what happens as a result of that choice.
The court then reviewed whether the releases covered the legal issues of the case. The court reviewed the release and pointed out the release covered the incident that covered the plaintiff’s injuries.
The Entry Release contains express language describing the types of accidents or dangers covered by the release, including “the dangers of collision with … other racers.” The collision between Lloyd and Bourassa was precisely the type of accident contemplated by the parties and waived by Lloyd in both releases.
The court then reviewed the plaintiff’s argument that the release did not cover willful and wanton negligence and the acts of the defendant were willful and wanton. The plaintiff found this language in the release. However, Maine does not recognize willful and wanton negligence and found the plaintiff’s argument did not apply.
Lloyd has asserted that the reference in the Event Release to an exception for “willful and wanton negligence” precludes summary judgment. However, no such tort has yet been recognized in Maine, so no jury could be asked to determine whether the defendants had acted with willful or wanton negligence.
Finally, the court found the sections of the release that allowed the defendants to recover damages for defending the lawsuits was applicable and ordered the defendants to provide proof of costs, including attorney fees against the defendant.
So Now What?
If you don’t cover other racers in your release, you need to provide a table for every racer entering your race. After a racer signs up for the event, he can then go down the tables signing each individual racers release form so if there is a collision or an injury allegedly caused by another racer they can have the benefit of the legal defense of release.
Corporations change, merge, move and die, and releases may need to last forever. When you identify the parties to be protected, include language that protects any future entity that may be liable or may take over for the original corporation.
The original release signed to become a member of the organization did not do that. The Sugarloaf release had language that was broad enough to cover the organization. U.S.A. Cycling got lucky!
You can be sued for a lot of things that occur besides the specific accidents during the event. Riders can be injured riding to or from the event start or finish, walking across your parking lot, eating at your restaurant or just falling out of bed in your hotel. Use a release that covers everything and anything so you don’t have to rely on the court to find a way to protect you. Make your protection up front, visible and easily understood.
Courts always state that the language in the release covers the accident that the plaintiff is complaining of, if that language is in the release. You can’t write a release that covers every type of accident or injury. However, you can write a release that covers the ones with high frequency and those with high severity. Here high frequency, collisions between participants in the event resulted in high severity. Because collisions between racers were covered in the event, it was easier for the court to find the release covered the injuries and accident the plaintiff complained was negligent.
Never give the plaintiff a reason to sue you. Never give the plaintiff the legal argument to win the lawsuit against you. If you are using a release with a clause that says the release is not valid for something, willful and wanton negligence, gross negligence, etc., have it taken out. Why give the plaintiff notice of the way to beat you in a lawsuit? If Maine did recognize willful and wanton negligence then the defendants would still be litigating this matter.
The defendants in this case did everything they could to allow the plaintiff to sue them and win. The court and the attorneys representing the defendants provided a miracle and got the defendants out of this case, except the other racer.
1. Make sure your release covers you, all of you, the future you and any other “you’s” associated with you.
2. Make sure your release covers everyone who makes the event possible. It is hard to get sponsors if they may be sued.
3. Make sure the release covers everyone working for you, including employees and contractors.
4. Please cover the other people in the event. How many racers are going to keep showing up when they hear “I got third and a lawsuit at that race!”
5. Have your release written so if you do get sued, you can recover your damages for defending your lawsuit.
What do you think? Leave a comment.
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Lloyd v. Bourassa, 2002 Me. Super. LEXIS 132
Posted: September 26, 2011 Filed under: Cycling, Legal Case, Maine, Release (pre-injury contract not to sue) | Tags: assigns, bicycle, collectively, Collision, counterclaims, Cycling, entities, genuine, heirs, indirectly, Issue of Material Fact, law enforcement agencies, legal representatives, mandatory, matter of law, Membership, Mountain, Off Road, own negligence, promoter, property owners, sponsor, Sport, successors, successors in interest, Summary judgment, Travel, waive, wanton negligence, willful Leave a commentLloyd v. Bourassa, 2002 Me. Super. LEXIS 132
C. Gary Lloyd, Plaintiff v. Tom Bourassa, Sugarloaf Mountain Corp., and United States Cycling, Inc. d/b/a National Off-Road Bicycle Association, Defendants
Civil Action Docket No. 01-CV-039
Superior Court of Maine, Hancock County
2002 Me. Super. LEXIS 132
August 20, 2002, Decided
August 21, 2002, Filed and Entered
SUBSEQUENT HISTORY: Affirmed by, Remanded by, Sub nomine at Lloyd v. Sugarloaf Mt. Corp., 2003 ME 117, 2003 Me. LEXIS 131 (Sept. 25, 2003)
DISPOSITION: [*1] Plaintiff’s motion for judgment on pleadings denied. Motions for summary judgment filed by defendants U.S.A. Cycling and Sugarloaf granted. Judgment granted to defendants on Counts II and III of plaintiff’s amended complaint.
CORE TERMS: cycling, membership, summary judgment, sponsor, bicycle, successors, mandatory, off-road, counterclaims, collision, promoter, mountain, collectively, indirectly, genuine, assigns, travel, entities, sport, waive, heirs, wanton negligence, willful, law enforcement agencies, matter of law, own negligence, issue of material fact, legal representatives, successors in interest, property owners
JUDGES: Ellen A. Gorman.
OPINION BY: Gorman
OPINION
ORDER
PROCEDURAL HISTORY
On June 22, 1995, C. Gary Lloyd applied for membership in “USCF . NORBA . NCCA.” After filling in some identifying information on the first page of the application form, Lloyd placed his signature on the second page, under a section entitled “Acknowledgment of Risk and Release of Liability.” That section contained the following language:
Please accept this as my application for membership and a USCF, NORBA and/or NCCA license.
I acknowledge that cycling is an inherently dangerous sport in which I participate at my own risk and that the United States Cycling Federation, Inc. is a non-profit corporation formed to advance the sport of cycling, the efforts of which directly benefit me. In consideration of the agreement of the USCF to issue a license to me, hereby on behalf of myself, my heirs, assigns and personal representatives, I release and forever discharge the USCF, its employees, agents, members, [*2] sponsors, promoters and affiliates from any and all liability, claim, loss, cost or expense, and waive and promise not to sue on any such claims against any such person or organization, arising directly or indirectly from or attributable in any legal way to any negligence, action or omission to act of any such person or organization in connection with sponsorship, organization or execution of any bicycle racing or sporting event, including travel to and from such event, in which I may participate as a rider, team member or spectator.
On August 11, 1995, with his NORBA membership in hand, Lloyd traveled to Kingfield, Maine to participate in a mountain biking event sponsored by the Sugarloaf Mountain Corporation known as the Widowmaker Challenge. At Kingfield, Lloyd signed the Official Entry Form, which included the following language under the heading of “Athlete’s Entry & Release Form 1“:
I fully realize the dangers of participating in a bicycle race and fully assume the risks associated with such participation including, by way of example, and not limitations, the following: the dangers of collision with pedestrians, vehicles, other racers and fixed or moving objects; the [*3] dangers arising from surface hazards, equipment failure, inadequate safety equipment and weather conditions; and the possibility of serious physical and/or mental trauma or injury associated with athletic cycling competition.
I hereby waive, release and discharge for myself, my heirs, executors, administrators, legal representatives, assigns, and successors in interest (hereinafter collectively “successors”) any and all rights and claims which I have or which may hereafter occur to me against the sponsors of this event, the National Off-Road Bicycle Association, the promoter and any promoting organization(s), property owners, law enforcement agencies, all public entities, and special districts and…. through or by which the events will be held for any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event, or travel to or return from the event . . . .
I agree, for myself and successors, that the above representations are contractually binding, and are not mere recitals, and that should I or my successors assert my claim in contravention of this agreement, I or my successors shall [*4] be liable for the expenses incurred (including legal fees) incurred by the other party or parties in defending, unless the other parties are financially adjudged liable on such claim for willful and wanton negligence.
1 To avoid confusion, the “release” signed in June shall be referred to as the “Membership Release,” and the release signed in August shall be referred to as the “Event Release.”
Lloyd registered to participate in both the cross-country race and the downhill challenge. While completing a mandatory practice run on August 11, 1995, Lloyd was involved in a collision with another participant, Tom Bourassa.
On August 10, 2001, Lloyd filed suit against Bourassa, Sugarloaf Mountain Corporation, and United States Cycling Federation d/b/a National Off-Road Bicycle Association, asserting negligence claims against all three. Soon thereafter, Lloyd learned that he had failed to name the appropriate corporate defendant, and filed a motion to amend the complaint. Over objection, that motion was granted, [*5] and U.S.A. Cycling, Inc. replaced United States Cycling Federation d/b/a National Off-Road Bicycle Association.
In their Answers, both Sugarloaf and U.S.A. Cycling responded that Lloyd’s claims were barred by the releases quoted above. In addition, both asserted Counterclaims against Lloyd for breaching the terms of the releases. Both demanded Lloyd be held liable for any expenses they incurred in defending his suit.
On January 25, 2002, Lloyd filed a Motion for Judgment on the Pleadings with respect to Defendants’ Counterclaims and Affirmative Defenses of Release and Waiver. Sugarloaf Mountain Corporation opposed that motion and filed its own Motion for Summary Judgment on March 11, 2002. U.S.A. Cycling also opposed the plaintiff’s motion, and filed its Motion for Summary Judgment on April 11, 2002. All of the motions requested that the court review the language of the releases and determine whether and how it affected the outcome of this suit. A hearing on all three motions was held on July 3, 2002. Any findings included below are based upon the properly submitted affidavits and statements of material fact. Specifically excluded from that category is the affidavit form Attorney [*6] Greif.
DISCUSSION
1. Plaintiff’s Motion for Judgment on the Pleadings
The plaintiff argues that he is entitled to judgment on the defendants’ counterclaims and on their affirmative defenses of release and waiver because “the release, 2” by its terms, does not apply to U.S.A. Cycling, does not apply to the facts of this case, does not protect the defendants from their own negligence, and is unenforceable as contrary to public policy.
2 Plaintiff did not address the language of the Membership Release in his motion.
In considering a motion for judgment on the pleadings, the court is required to accept all of the responding party’s pleadings as true, and draw all reasonable inferences in its favor. Judgment is only appropriate if the responding party can prove no set of facts that would entitle it to relief. The plaintiff has failed to meet that burden.
Applicability to U.S.A. Cycling
In support of his first assertion, Lloyd argued that, because the Event Release does not mention U.S.A. Cycling, [*7] that defendant is not within the category of potentially released entities. With its response to this motion, U.S.A. Cycling filed an affidavit by Barton Enoch to establish that NORBA, a named sponsor of the Widowmaker, was the off-road division of U.S.A. Cycling, Inc. The clear language of the Entry Release covers sponsors, including U.S.A. Cycling d/b/a NORBA.
As mentioned above, Lloyd applied for membership in the United States Cycling Federation (USCF) and NORBA in June 1995. Soon thereafter, USCF merged into a new corporation, U.S.A. Cycling, Inc, that assumed all of its rights and responsibilities. By signing the Membership Release, Lloyd released U.S.A. Cycling, Inc. from responsibility for any accidents that might occur during his participation in any race events it sponsored.
Definition of Event
Lloyd has argued that the strictly construed language of the Event Release does not cover accidents that occur during the training run. In support of this argument, he has cited Doyle v. Bowdoin College, 403 A.2d 1206 (Me. 1979.) In that case, the Law Court said “releases absolving a defendant of liability for his own negligence must expressly spell out [*8] ‘with the greatest particularity’ the intention of the parties contractually to extinguish negligence liability.” Doyle, at 1208. Contrary to the plaintiff’s assertions, the language of the Event Release does precisely that:
I hereby waive, release and discharge for myself, my heirs, executors, administrators, legal representatives, assigns, and successors in interest (hereinafter collectively “successors”) any and all rights and claims which I have or which may hereafter occur to me against the sponsors of this event, the National Off-Road Bicycle Association, the promoter and any promoting organization(s), property owners, law enforcement agencies, all public entities, and special districts and properties . . . . through or by which the events will be held for any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event, or travel to or return from the event . . . . (emphasis added)
All parties have agreed that the training run was a mandatory part of the event. To interpret the Event Release in such a convoluted fashion that it excludes a mandatory part of the [*9] event from the term “event” defies logic and is contrary to the intent of the parties as demonstrated by the plain language of the release. Hardy v. St. Clair, 1999 ME 142, 739 A.2d 368.
Public Policy
Although releases of liability are “traditionally disfavored,” in Maine that disfavor has resulted in strict interpretation rather than prohibition. Doyle v. Bowdoin College, Id. The cases cited by plaintiff in support of his contrary argument are from other jurisdictions and do not accurately describe the law in Maine. When asked to consider the issue raised here, both Maine state courts and the First Circuit have consistently enforced the language of releases. See, e.g., Hardy v. St. Clair, 1999 ME 142, 739 A.2d 368; McGuire v. Sunday River Skiway Corp., 1994 WL 505035 (D.Me.)(Hornby, J.), aff’d 47 F.3d 1156 (1st Cir. 1995). Despite his reference to a “contract of adhesion,” Lloyd was not compelled to sign either release. He chose to sign both because he wanted to participate in an inherently risky sport. He is free to make such choices, but must also accept responsibility for what happens as a result [*10] of that choice.
For the reasons stated above, plaintiff’s motion for judgment on the pleadings is denied.
2. Defendants’ Motions for Summary Judgment
The Law Court has addressed motions for summary judgment on many occasions:
In reviewing a summary judgment, we examine the evidence in the light most favorable to the nonprevailing party to determine whether the record supports the conclusion that there is no genuine issue of material fact and that the prevailing party is entitled to a judgment as a matter of law. (citation omitted) In testing the propriety of a summary judgment, we accept as true the uncontroverted facts properly appearing in the record. (citation omitted)
Champagne v. Mid-Maine Med. Ctr., 1998 ME 87, P5, 711 A.2d 842, 844. The issue is not whether there are any disputes of fact, but whether any of the disputes involve a “genuine” issue of “material” fact. See Rule 56(c). After reviewing the record provided with these standards in mind, the court must conclude that there are no genuine issues of disputed fact.
Both Lloyd and the defendants agree that Lloyd was required to complete a practice run in order to participate [*11] in the Widowmaker Challenge. All of them agree that Lloyd signed both releases before he took that mandatory run, and all agree that he was involved in a collision with another bicyclist during that run. As was discussed above, the practice run and any problems encountered during it are covered by the terms of the releases Lloyd signed. The Membership Release contains express language releasing claims arising from negligence. The Entry Release contains express language describing the types of accidents or dangers covered by the release, including “the dangers of collision with … other racers.” The collision between Lloyd and Bourassa was precisely the type of accident contemplated by the parties and waived by Lloyd in both releases.
Lloyd has failed to refer to any evidence in the record that might support his theory that that the Event Release should be seen as a substitution or novation of the Membership Release. Without such evidence, the court may not presume that the parties intended that one contract be substituted for the other.
Lloyd has asserted that the reference in the Event Release to an exception for “willful and wanton negligence” precludes summary judgment. However, [*12] no such tort has yet been recognized in Maine, so no jury could be asked to determine whether the defendants had acted with willful or wanton negligence. That exception is inapplicable in this jurisdiction. In addition, that language refers only to the portion of the Release that discusses the defendants’ right to recover expenses, including legal fees. On the record presented, there are no material issues of disputed fact concerning the language of the releases.
U.S.A. Cycling was a sponsor and Sugarloaf was a promoter of the race. As a matter of law, the court finds that the mandatory practice run was included within the language of the Releases, that the releases are clear and unambiguous, and that the accident Lloyd claims falls entirely within the types of harms contemplated by the parties at the time the releases were signed. There is nothing left to be litigated on either plaintiff’s Complaint against defendants U.S.A. Cycling and Sugarloaf, or on their Counterclaims against him.
For the reasons stated above, the court finds that the releases signed by Lloyd individually and collectively bar any civil action against either U.S.A. Cycling, d/b/a NORBA or against Sugarloaf for [*13] the injuries Lloyd allegedly sustained on August 11, 1995. Summary judgment on plaintiff’s Complaint is granted to U.S.A. Cycling, d/b/a NORBA and to Sugarloaf. In addition, summary judgment against Lloyd on their Counterclaims is granted to both U.S.A. Cycling, d/b/a NORBA and. Within thirty (30) days, counsel for these defendants shall submit proof of expenses, including attorney fees, incurred in defense of this action.
ORDER
Plaintiff’s motion for judgment on the pleadings is denied. The motions for summary judgment filed by defendants U.S.A. Cycling and Sugarloaf are granted. Judgment is granted to those defendants on Counts II and III of plaintiff’s amended complaint.
DOCKET ENTRY
The Clerk is directed to incorporate this Order in the docket by reference, in accordance with M.R.Civ.P. 79(a).
DATED: 20 August 2002
Ellen A. Gorman
Release for training ride at Triathlon training camp stops lawsuit
Posted: September 19, 2011 Filed under: Cycling, Release (pre-injury contract not to sue) Leave a commentConning v. Dietrich, 2011 NY Slip Op 51340U; 32 Misc. 3d 1215A; 2011 N.Y. Misc. LEXIS 3481
Assumption of the risk is still a valid defense to stop suits in NY, more so when supported with a release that explains the risks…
In this case the plaintiff was on a training ride with other cyclists at a triathlon camp. During the ride the plaintiff followed the rider in the paceline in front of her off the roadway and then attempted to get back on when she crashed. She was then run over by a car.
The plaintiff sued the club to which she belonged and which was sponsoring the training, the driver of the car and the leader of the training weekend.
The plaintiff had extensive experience in cycling and in triathlons. She voluntarily signed up for the weekend and the training. She voluntarily was on the highway and followed the other cyclists off the roadway.
So?
Assumption of the risk
The court first found the plaintiff assumed the risks of the risks that created her initial injuries and the accident. Under New York law “doctrine of assumption of risk is “intended to facilitate free and vigorous participation in athletic activities.” Without the ability to freely and vigorously any and all athletic events will be boring. The ability to play to the fullest extent possible can only be achieved if you know you are not liable beyond the ordinary rules of the game.
When someone enters into a sport, they must be prepared to accept the risks of the sport, absent unforeseeable or intentional injuries.
…it is not necessary . . . that the injured plaintiff have foreseen the exact manner in which the injury occurred, so long as he or she is aware of the potential for injury from the mechanism from which the injury results.”
If a participant makes an informed estimate of the risks involved in the activity and willingly undertakes them, then there can be no liability if he is injured as a result of those risks.
When you engage in sporting activities, you consent to the risks of the game.
Inherent Risks
All activities have risks. The risk of eating is choking on the food. That risk is an inherent risk. The court looked at cycling and found that the risk of striking a hole and falling is an inherent risk of bicycling on most outdoor surfaces.
…the risk of encountering ruts and bumps while riding a bicycle over a rough roadway . . . is so obvious . . . or should be to an experienced bicyclist . . . that, as a matter of law, plaintiff assumed any risk inherent in the activity.
If a plaintiff is injured due to the inherent risks of an activity the defendant owes no duty to the plaintiff.
The release or waiver of liability
The first thing the court stated about the release was the release made the plaintiff aware of the risks of injury.
….she was aware of the risks explicitly stated in the waiver. Once “risks of the activity are fully comprehended or perfectly obvious” to plaintiff, plaintiff is deemed to have accepted the risks by taking part in the activity
When releases are well written, clear and unambiguous and signed knowingly and voluntarily by the plaintiff they will be upheld in New York. One exception is a statute in NY that prohibits releases for places of amusement or recreation; GOL § 5-326.
§ 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable
Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.
The issue then becomes is the activity that injured the plaintiff one of amusement or recreation. Both require the payment of a fee for use of the activity or place. Here the activity, which included the payment of a fee, was educational in nature, like most sporting activities. “New York State Courts have uniformly found that when a sporting activity is “instructional” rather than “recreational” a waiver of liability will not be deemed void under GOL § 5-326.”
The plaintiff argued that the weekend was a place of recreation. However that argument was not upheld because of the instruction the plaintiff received in becoming a better triathlete.
So Now What?
Assumption of the risk is another way of saying that the plaintiff was educated. The more information your clients know and understand the more they assume the risk. Make sure you work had at two things to prove assumption of the risk:
- 1. Answer all questions and provide more information, all information, which your clients could want to know.
- 2. Be prepared to prove that you have answered all questions and provided all the information your clients needed to know.
The easiest way is to put everything up on a website and then constantly refer your clients to the website after dealing with them. Then, place a statement in your release that they have viewed your website.
In New York you need to make sure that your activity, if you wish to use a release is instructional in nature. You can do this at the same time that you are informing or educating your clients about the risks.
However, if you are a recreational or amusement that charges a fee, you have a greater burden to educate your clients of the risks. That maybe the only defense you have.
Remember, no matter what you do in whatever state, educated knowledgeable guests or clients have more fun, are less likely to be injured and create a solid defense for you.
What do you think? Leave a comment.
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Maine follows the majority and does not allow a parent to sign away a minor’s right to sue.
Posted: August 15, 2011 Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: Adventure travel, American Ski Company, Children, JimMoss, MAINE, Minor, Outdoor recreation, Parental Responsibility, Parental Rights, Rock climbing, Ski Resort, United States Leave a commentRice, Et Als, vs. American Skiing Company, Et Als, 2000 Me. Super. LEXIS 90
However the court held out the possibility that a
properly written indemnification clause may
be upheld.
In Rice et all the plaintiff was a nine year old boy skiing at Sunday River Ski Area. Sunday River Skiway Corporation was owned by the now defunct
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American Ski Company at the time. The mother of the plaintiff signed the plaintiff up for an all-day ski lesson. While doing so she signed a “Acknowledgement &; Acceptance of Risks & Liability Release” (Ski Enrollment Form)” The form stated the risks and released the defendant of liability for negligence. The form also contained an indemnification provisions which stated the parents would indemnify the ski area for any losses of the minor.
During the afternoon instruction the plaintiff fell. The class stopped and waited for him to catch up. The plaintiff lost control and skied into the tree suffering injuries. The plaintiff sued for negligent supervision. The defendants claimed the defenses of the Maine Skiers’ and Tramway Passengers’ Responsibilities Act, 32 M.R.S.A. § 15217 (Supp. 1999) and the release signed by the mother.
The court quickly found the Maine Ski Act did not stop the lawsuit. The Maine Ski Act allows a suit for “does not prevent the maintenance of an action against the ski area operator for the negligent operation of the ski area”. The court found that negligent supervision “clearly” falls within the Maine Ski Acts “negligent operation” exclusion.
The court then looked at the release and struck the normal cords discussing releases. The court looks with disfavor on releases, releases must be strictly construed, and they must spell out with greatest particularity the intention of the parties.
After reviewing Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 696 N.E.2d 201 (Ohio 1998), the court held that Zivich only applied to non-profit organizations and in one-half of a sentence dismissed the issue that a parent is constitutionally allowed to sign a release for a child. The court then looked at prior law in Maine and held that a parent could not sign away a minor’s right to sue in Maine.
The court then looked at the mother’s claim for lost wages. The mother’s claim is derivative of the son’s claims. That means that if the son’s claim does not prevail then the mother’s claim does not stand. Because there were no defenses to the son’s claim then the mother’s claim could go forward.
Whether a parent can recover for their own losses when a child is negligently injured varies from state to state.
The final defense reviewed by the court was the indemnification language in the release. Maine, like all other states disfavors indemnification clauses against a defendant’s own negligence. The court found that this clause was not sufficient to state a defense under Maine law. However the court did not deny indemnifications claims absolutely. A release or indemnification agreement written with the guidelines of the court may be upheld.
So? Summary of the case
Maine fell in with the majority of the states holding that a parent could not sign away a minor’s right to sue. Nothing knew there. However there were several other defenses that were not raised or maybe were raised at later times.
The mother enrolled the plaintiff in a level III class. That required the plaintiff to have experience and be able to “form a wedge, to be able to stop and start and to get up on their own if they fall and they can put their skis on by themselves and that they have experience riding the chairlift.” A minor can assume the risk of injury. Whether or not a nine year minor can I do not know. The specific age were a minor can assume a risk varies by state and by age. However, the plaintiff did have experience skiing and as such might have assumed the risk.
Another outside claim might be that the mother was a fault for signing here son up for a class that was beyond his abilities. Maybe the minor should have been enrolled in a Level 1 or 2 class. However, this claim would be subject to the claim that the instructor should have moved the child if the child was in the wrong class by lunch. This argument may hold if the accident occurred in the morning before the ski instructor had the opportunity to review the student.
The court also brought up and pointed out that the father had not signed any of the documentation. Not a legal point, but an interesting one in this case.
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So Now What?
1. Get the best most well written release you can that specifically stops lawsuits by parents.
2. Educate the minor in advance, and probably the parents so you might have an assumption of the risk defense.
3. Be very wary with kids. If it appears that the minor cannot ski with the rest of the class, either move the minor to another class or move the class to a slope the minor can handle.
What do you think? Leave a comment.
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Lying in a release can get your release thrown out by the court.
Posted: July 11, 2011 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Release (pre-injury contract not to sue) Leave a commentSmoky, Inc. v. McCray et al., 196 Ga. App. 650; 396 S.E.2d 794; 1990 Ga. App. LEXIS 1023
Don’t lie!.
This Georgia case looks at the issues when the defendant misleads or lies to the guest and that lie is material to the heart of the case. The plaintiff was taking horseback riding lessons from the defendant. The plaintiff sued for injuries she received during a riding lesson. The defendant filed a motion for summary judgment which was granted by the trial court based on the release (exculpatory contract) signed by the plaintiff.
The plaintiff appealed. The court reviewed the release and found the release contained statement that the defendant did not have liability insurance and that was the reason why the release was needed.
“IT IS EXPRESSLY UNDERSTOOD by the undersigned that Burgundy Ridge Farms, Inc., Peter W. Nathan, Joseph and Kathleen Patton, have no insurance covering equestrian activities and that the undersigned would not be permitted to engage in equestrian activities without this release whereby the undersigned irregardless of fault, agrees to fully release Burgundy Ridge [*209] Farms, Inc., Peter W. Nathan, Joseph and Kathleen Patton and their employees and agents from any and all responsibility as a result of accident or injury.”
Of course after her injury the plaintiff learned the defendant did have insurance. Originally the defendant did not have insurance, however after getting insurance the defendant continued to use the release stating the defendant had no insurance.
The appellate court held that the actions of the defendant were fraudulent misrepresentation. Fraudulent misrepresentation was defined by the court as:
…elements of fraudulent misrepresentation rendering a contract voidable are: (1) there must be a statement of fact which is untrue; (2) the false statement must be made with intent to defraud and for the purpose of inducing the other party to act upon it; and (3) the other party must rely on the false statement and must be induced thereby to act to his injury or damage.
Because under Georgia and most other state laws, exculpatory contracts (releases) are not favored, releases are strictly construed against the party seeking to enforce the release. That means that any issue interpreting the release will be ruled in favor of the plaintiff attempting to get the release thrown out. Here the court looked at whether the release violated public policy and found
… exculpatory contracts have been declared void on public policy grounds: a contract arises out of a business generally thought suitable for public regulation; the party seeking exculpation is engaged in performing a service of great importance to the public; the party seeking exculpation holds itself out as willing to give reasonable public service to all who apply; and the party invoking exculpation possesses a decisive advantage of bargaining strength.
Although the court examined the public policy argument, the ultimate decision point was the fact the release was signed based on a misstatement of fact. The fact was the defendant did have insurance when the release said the defendant did not have insurance.
There can be no question that a statement that the defendants have no insurance protection is highly relevant to a reasonable student’s decision to sign a contract which allocates to the student the losses arising out of equestrian activities.
When the party seeking an exculpatory contract includes in the contract a false statement about a fact which is relevant to a reasonable person’s decision whether to execute a release allocating losses, the principles of contract law do not weigh heavily in favor of enforcement of the exculpatory contract, and the goals of tort law weigh against enforcement of the exculpatory contract.
The court then went on and stated:
If we were to enforce an exculpatory contract based on a false statement of fact relevant to a reasonable person’s decision whether to execute the release, we would open the door to sharp practice. Misstatements by the party seeking the release raise the strong suspicion of inequitable motive and overreaching and of lack of good faith or fair dealing on the part of the party seeking the release and of oppression of the party executing the release.
The court held the misstatement was enough to throw out the release. The decision of the lower court was reversed and the case was sent back down for trial.
So? Summary of the case
Courts are always looking for ways to void a release. The law requires it. Releases are not favored by the court and to be strictly construed. Any mistaken in the document, in any contract, can void the release.
So Now What? (Motivational get them to do something post)
Releases need to be written correctly. Make sure that:
- · Your release is written to match the facts and needs of your operation.
- · Your release has not facts or statements that are not 100% correct
- · Your marketing and advertising do not make statements that are contrary to your release.
Your release is not a standalone document. It must conform to your other contracts and your insurance policy. It must be written for your operation and your guests. And it must be part of your overall marketing and risk management plan.
What do you think? Leave a comment.
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If I were starting a new outfitting business this is what I would worry about from a Risk Management Perspective.
Posted: June 29, 2011 Filed under: Assumption of the Risk, Insurance, Release (pre-injury contract not to sue), Risk Management Leave a commentHere is what I would worry about:
1. Do I have a well written release that will cover what I do for the state I do it in? See:
Wrong release for the activity almost sinks YMCA
States that allow a parent to sign away a minor’s right to sue–Updated 2011
Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele.
2. Am I providing all the information that I can provide to the participants so they understand and assume the risk? See:
3. If something happens do I have the ability to deal with the problems? Remembering where you are and what you can really do. Small first aid kit and someone to go get help. See:
Money is important in some lawsuits, but the emotions that starts a lawsuit.
Why do people sue? Not for the money.
4. Is my marketing program going to cause problems for my risk management program? See:
If you make a promise to attract participants, you must come through on your promises.
Who You Gonna’ Call, Ghostbusters?
INFLATION AND DEFLATION: A Quick Course in Outdoor Recreation Economics
5. Do I have an insurance policy that is going to cover me? Does my insurance agent or broker understand what I am doing? See:
What do you think? Leave a comment.
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Letter to the Editor Bicycling Magazine
Posted: June 21, 2011 Filed under: Cycling, Release (pre-injury contract not to sue) Leave a commentMy letters rarely get published…
Bicycling
400 S. Tenth St.
Emmaus, PA 18098
Via Email: bicycling@rodale.com
Re: Signing Your Life Away?, page 35
Volume LII Number 4, May 2011
Dear Mr. Flax:
I thought I should clarify some of the statements in your article Signing Your Life Away?
(May 2011 issue of Bicycling Magazine). Three states do not allow anyone to use a release; Louisiana,1 Montana2 and Virginia.3 4 Several states limit how and when a release can be used; Arizona5, New Mexico6 and West Virginia7, Hawaii8, New York9. There are three states where the use of a release is very restricted or unknown; Connecticut, Wisconsin and Vermont. At present, no states that restrict the use of a release do so for cycling events except, perhaps, New York.
Your article did have one inaccuracy. Ten states allow a parent to sign away a minor’s right to sue;10 Alaska11, Arizona12, Colorado13, Florida14, California, Massachusetts15, North1 Dakota16, Ohio17 and possibly Wisconsin18. At present, more than twenty states have not ruled on whether a parent can sign away a minor’s right to sue. In those states that have ruled that a parent cannot sign away a minor’s right to sue there still maybe the option to compel the minor and the parent to binding arbitration of the claims. This may reduce the overall recovery of the claimant. In these courts and the rest of the states releases are worth their weight in gold. A release is an agreement that states in advance you will be responsible for your injuries. If you are worried about signing a release to enter an event or race, instead of rolling the dice to see if the release may be thrown out of court, purchase adequate health, life or disability insurance. This is probably a good idea for any cyclists riding on the streets.
Your readership needs to know that a release will more than likely stop their lawsuit for any injuries, so they can be prepared for that in advance rather than hoping they can win, not knowing their chances are slim. The one thing that a cyclist may want to investigate, (read) in a release is whether or not they are protected from a lawsuit by another injured rider. Either the term co-participant or other participants (riders, cyclists, etc.) should be in the release as a person protected by the release or the rider may be sued for the injuries of another participant. Negligence of a race or event organizer is difficult to prove and most riders are unsuccessful. Proving negligence of another ride has been proven quite easily. A rider’s condo, apartment or homeowner’s insurance is the company that will step up to defend if a cyclist is sued.
Sincerely,
James H. Moss, JD
a member of The Spokesmen Cycling Podcast
WI App 1
C.C. Art. 2004 (2005)
2 MCA § 27-1-701
3 Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890)
4 States that do not Support the Use of a Release
5 Phelps v. Firebird Raceway, Inc., 2005 Ariz. LEXIS 53
6 Berlangieri v. Running Elk Corporation, 132 N.M. 332;2002 NMCA 60;48
P.3d 70;2002 N.M. App. 39;41 N.M. St. B. Bull. 25
7 Kyriazis v. University of West Virginia; 192 W. Va. 60; 450 S.E.2d 649;
1994 W. Va. LEXIS 161
8 King v. CJM Country Stables, 315 F. Supp. 2d 1061, 2004 U.S. Dist. LEXIS 7511 (D. Haw. 2004)
9 General Obligation Law § 5-326
10 States that allow a parent to sign away a minor’s right to sue
11 Alaska: Sec. 09.65.292
12 ARS § 12-553
13 C.R.S. §§13-22-107
14 Florida Statute § 744.301 (3)
15 Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384
16 McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3
17 Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998)
18 Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003
What do you think? Leave a comment.
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Alabama follows the majority of states and does not allow a parent to sign away a minor’s right to sue.
Posted: June 20, 2011 Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: Adventure travel, Alabama, Child, Indiana, JimMoss, Minor, Motorcross, Outdoor recreation, Parental Responsibility, Parental Rights, Rock climbing, United States district court Leave a commentJ.T., Jr., a minor v. Monster Mountain, Llc, 2010 U.S. Dist. LEXIS 130407; 78 Fed. R. Serv. 3d (Callaghan) 182
This is an interesting case based on who actually signed the release on behalf of and in an attempt to bind the minor.
The minor traveled from Indiana to Alabama to ride at the defendant’s motocross facility. The parents of the minor signed a power of attorney giving the
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coach the authority to sign on their behalf “all release of liability and registration forms and to give consent for medical treatment” for the minor while on the trip. This was a proper power of attorney, signed by the parents and notarized.
The coach then registered the plaintiff each day and signed the release on the plaintiff’s behalf.
While riding on the third day the minor went over a jump. While airborne he saw a tractor that had been parked on the track which he collided with. The minor sued in Federal District Court for his injuries claiming the act of leaving the tractor on the track was negligent.
Summary of the case
Under Alabama law, like in most jurisdictions a minor cannot contract. That is done so that adults will not take advantage of minors. The exception to the rule is a minor can contract for necessities. Necessities are food, utilities, etc., those things necessary to live.
Also under Alabama law, and most other states, a parent cannot sign away a minor’s right in advance except in with regard to insurance. A parent can sign away a minor’s right in an insurance policy with regard to the subrogation right in the insurance policy. The court reasoned the minor cannot have the benefits of the insurance without the responsibility also.
So Alabama is like the majority of states. A parent cannot sign away a minor’s right to sue and a minor cannot contract or sign a release.
So Now What?
In most states, the only real defense available to stop a lawsuit by a minor is assumption of the risk. Because a minor cannot contract, the minor cannot agree to assume the risk in writing. You the outdoor business or program must be able to show that you gave the minor the information so the minor knew the risks and accepted them. It is up to the trier of fact to determine if the minor understood those risks.
1. Make your website an information resource. Any and every question about the activity should be there including what the risks are and how to deal with them. Put in pictures, FAQ’s and videos. Show the good and the bad.
2. Provide a bonus or a benefit for completing watching and reviewing the website. If a minor collects the bonus or benefit then you have proof the minor know of the risks.
3. Review the bigger risks and the common ones with all minors before they are allowed to participate in the activity.
4. Still have the parents sign a release. Remember the parents have a right to sue for the minor’s injuries. A release will stop the parent’s suit. Put in the release that the parent has reviewed the website with the minor to make sure the minor understands the risks of the activity.
What do you think? Leave a comment.
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J.T., Jr., a minor v. Monster Mountain, Llc, 2010 U.S. Dist. LEXIS 130407; 78 Fed. R. Serv. 3d (Callaghan) 182
Posted: June 20, 2011 Filed under: Alabama, Legal Case, Minors, Youth, Children, Release (pre-injury contract not to sue) Leave a commentJ.T., Jr., a minor v. Monster Mountain, Llc, 2010 U.S. Dist. LEXIS 130407; 78 Fed. R. Serv. 3d (Callaghan) 182
J.T., Jr., a minor who sues by and through SUSAN THODE, his mother and next of friend, Plaintiff, v. MONSTER MOUNTAIN, LLC, D/B/A MONSTER MOUNTAIN MX PARK; DOUBLE AA ENTERPRISES, LLC; PRECISION CYCLES, LLC, D/B/A TRACK SIDE PERFORMANCE PRO SHOP; WILLIAM ANDERSON, III; and MILAN HARRIS, Defendants.
CIVIL ACTION NO. 2:09cv643-WHA-TFM (WO)
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
2010 U.S. Dist. LEXIS 130407; 78 Fed. R. Serv. 3d (Callaghan) 182
December 9, 2010, Decided
December 9, 2010, Filed
COUNSEL: [*1] For J.T., Jr., a minor who sues by and through Susan Thode, his mother and next of friend, Plaintiff: Benjamin E. Baker , Jr., LEAD ATTORNEY, Dana Claire Taunton, Beasley Allen Crown Methvin Portis & Miles PC, Montgomery, AL; Michael J. Crow, LEAD ATTORNEY, Beasley Allen Crow Methvin Portis & Miles PC, Montgomery, AL.
For Monster Mountain, LLC, doing business as Monster Mountain MX Park, Double AA Enterprises, LLC, William Anderson, III, Defendants: Richard Brett Garrett, LEAD ATTORNEY, Rushton Stakely Johnston & Garrett PC, Montgomery, AL; Thomas Grant Sexton , Jr., Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, AL.
For Precision Cycles, LLC, doing business as Track Side Performance Pro Shop, Milan Harris, Defendants: Joseph William Warren, LEAD ATTORNEY, Joseph W. Warren, P.C., Montgomery, AL.
JUDGES: W. HAROLD ALBRITTON, SENIOR UNITED STATES DISTRICT JUDGE.
OPINION BY: W. HAROLD ALBRITTON
OPINION
MEMORANDUM OPINION AND ORDER
I.INTRODUCTION
This cause is before the court on a Motion for Summary Judgment filed by Monster Mountain, LLC (“Monster Mountain”); Double AA Enterprises, LLC (“Double AA”); and William Anderson, III (“Anderson,” collectively, the “Monster Mountain Defendants”) (Doc. #30). The Plaintiff, [*2] J.T., Jr. (“J.T.”) filed a Complaint in this case alleging that Monster Mountain, Double AA, Anderson, Precision Cycles, LLC, and Milan Harris (collectively, the “Defendants”) are liable to him on the basis of premises liability, negligence, and wantonness. The Monster Mountain Defendants moved for summary judgment on the negligence cause of action, asserting that a contractual exculpatory clause bars J.T.’s claim. For the reasons to be discussed, the Motion for Summary Judgment is due to be DENIED.
II.SUMMARY JUDGMENT STANDARD
[HN1] Summary judgment is proper “if there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
The party asking for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion,” relying on submissions “which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. Once the moving party has met its burden, the nonmoving party must “go beyond the pleadings” and show that there is a genuine issue for trial. Id. at 324.
[HN2] Both the party “asserting that a fact cannot be,” and [*3] a party asserting that a fact is genuinely disputed, must support their assertions by “citing to particular parts of materials in the record,” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). Acceptable materials under Rule 56(c)(1)(A) include “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.”
[HN3] To avoid summary judgment, the nonmoving party “must do more than show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). On the other hand, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
After the nonmoving party has responded to the motion for summary judgment, the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material [*4] fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
III.FACTS
The submissions of the parties establish the following facts, viewed in a light most favorable to the non-movant:
J.T. is a minor from the state of Indiana and a competitive motocross rider. On January 29, 2009, J.T. traveled to Monster Mountain MX Park in Alabama, a motocross park owned by Double AA. He was accompanied by several friends and his coach, James Tyler Thompson (“Thompson”). Prior to departing, J.T.’s parents signed a notarized document authorizing Thompson to “act as our son’s legal guardian in our absence for the purpose of signing all release of liability and registration forms and to give consent for medical treatment.” (Doc. #30-1.)
To ride at Monster Mountain, all riders must pay an entry fee and execute a Release and Waiver of Liability and Indemnity Agreement (the “Release”). The Release reads in pertinent part:
IN CONSIDERATION of being permitted to enter . . . EACH OF THE UNDERSIGNED, for himself, his personal representatives, heirs, and next of kin, acknowledges, agrees and represents that he has, or will immediately upon entering . . . [inspect the premises] . . .
[and] [*5] HEREBY RELEASES, WAIVES, DISCHARGES, AND COVENANTS NOT TO SUE the . . . track operator [or] track owner . . . from all liability to the undersigned, his personal representatives, assigns, heirs, and next of kin for any and all loss or damage . . . whether caused by the negligence of the releasees or otherwise while the undersigned is in or upon the restricted area . . .
[and] HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS the releasees and each of them from any loss, liability, damage, or cost they may incur due to the presence of the undersigned in or upon the restricted area . . .
[and] HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE due to the negligence of releasees or otherwise . . . .
THE UNDERSIGNED HAS READ AND VOLUNTARILY SIGNS THE RELEASE AND WAIVER . . . and further agrees that no oral representations, statements or inducements apart from the foregoing written agreement have been made.
(Doc. #30-2.)
During his first three days at Monster Mountain, J.T. rode without incident. On the morning of February 1, 2009, J.T., Thompson, and the other riders who traveled with them, arrived at Monster Mountain for another day of riding.
After [*6] J.T. and Thompson signed the Release, with Thompson signing on J.T.’s behalf, Thompson paid J.T.’s entry fee, and J.T. entered Monster Mountain and began riding around the track. Subsequently, J.T. rode over a blind jump, became airborne, and crashed into a tractor on the track that he did not see until he was airborne. J.T. alleges, among other causes of action, that Defendants’ failure to remove the tractor from the track constituted negligence.
IV.DISCUSSION
The issue before the court is whether J.T.’s negligence claims against the Monster Mountain Defendants are barred by the Release. The Monster Mountain Defendants contend that they are entitled to summary judgment because J.T. signed the Release and Thompson “signed [the Release] on [J.T.’s] behalf,” thus binding J.T. to a contract that exculpates the Monster Mountain Defendants from liability for J.T.’s injuries. (Br. in Supp. of Mot. for Summ. J. at 3.)
J.T. responds that, under Alabama law, a contract made with a minor is voidable. Young v. Weaver, 883 So. 2d 234, 236-37 (Ala. Civ. App. 2003). 1 J.T. argues that because the Release is effectively a contract with a minor, whether signed on his behalf or not, the Release is not [*7] binding on him.
1 One exception to the rule that a contract with an infant is voidable at the election of the infant is that “when an infant executes a contract, the infant is liable only on his implied promise to pay for necessaries.” Ex parte Odem, 537 So. 2d 919, 920 (Ala. 1988).
The Monster Mountain Defendants concede that J.T.’s signature on the contract cannot make it binding, due to the rule that a contract with a minor is voidable. However, they attempt to overcome J.T.’s argument by asserting that Thompson, an adult who was acting on behalf of J.T.’s parents, signed the Release on J.T.’s behalf. Thus, the Monster Mountain Defendants contend that if a child’s parents, acting through an agent, sign an exculpatory contract on their child’s behalf, the contract is binding on the child and not voidable.
As the following discussion indicates, the court agrees with J.T., and therefore, summary judgment is due to be denied.
A. Alabama Law
The parties agree that Alabama law applies in this case. They also agree that Alabama courts have not addressed the specific factual situation presented by this case. However, Alabama courts have dealt with three relevant legal principles.
First, [HN4] Alabama, [*8] like virtually all jurisdictions, applies the longstanding common law rule that, except for a contract for necessaries, “a minor is not liable on any contract he makes and that he may disaffirm the same.” See, e.g., Young, 883 So. 2d at 236 (internal punctuation omitted). This rule exists to protect minors from being taken advantage of by others due to minors’ “improvidence and incapacity.” Bell v. Burkhalter, 176 Ala. 62, 57 So. 460 (Ala. 1912) (citing Am. Freehold Land Mortg. Co. v. Dykes, 18 So. 292, 294, 111 Ala. 178 (Ala. 1895)). This rule is firmly entrenched in the common law and has existed at least since the year 1292. 5 Richard A. Lord, Williston on Contracts § 9:2 (4th ed. 1993).
Second, while Alabama courts have noted an exception to this rule, that exception is narrow. In Peck v. Dill, the Alabama Supreme Court held that a parent could sign a binding contract on behalf of a child, pursuant to a health care plan, that required the child to subrogate the health insurer for injuries caused by third parties. 581 So. 2d 800, 802 (Ala. 1991), overruled on other grounds by Ex Parte State Farm Fire & Cas. Co., 764 So. 2d 543, 544, 546 (Ala. 2000)). The court noted that contracts involving minors are generally [*9] voidable, yet carved out an exception to this default rule due to the following policy considerations (1) “the availability of medical insurance to minors depends on whether parents” can bind their children to these subrogation clauses; (2) “a minor cannot take the benefits of a contract while disaffirming the burdens;” and (3) a minor not bound to this subrogation clause would receive a windfall by recovering from both an insurer and a tortfeasor for the same injury. Id. at 804 (quoting Hamrick v. Hosp. Serv. Corp., 110 R.I. 634, 296 A.2d 15, 17-18 (R.I. 1972)).
Third, [HN5] Alabama courts have restricted the right of a parent or guardian to release a minor’s post-injury claims. Abernathy v. Colbert Cnty. Hosp. Bd., 388 So. 2d 1207, 1209 (Ala. 1980). Specifically, a parent or guardian cannot bind a minor to a settlement that releases the minor’s post-injury claims without express court approval. Id. The rationale behind the need for express court approval, similar to the voidable contract rule for minors, is to protect the minor’s “best interest[s].” Id.
The teaching of these cases is that, in Alabama, the default rule is that contracts with minors are voidable. While the Alabama Supreme Court has shown [*10] willingness to make a narrow exception to this rule in the unique factual scenario from Peck v. Dill, that case serves as an exception, not a change in, the default rule.
B. Law from Other Jurisdictions
Because no Alabama case or statute directly addresses the issue of the case at bar, the court turns to the law of other jurisdictions for persuasive guidance. There are three important conclusions to be drawn from the law of other jurisdictions.
First, [HN6] the majority rule in the United States is that parents may not bind their children to pre-injury liability waivers by signing the waivers on their children’s behalf. See, e.g., Galloway v. Iowa, 790 N.W.2d 252, 2010 WL 4365953, at *4 (Iowa 2010) (listing cases and stating that “the majority of state courts who have examined the issue . . . have concluded public policy precludes enforcement of a parent’s preinjury waiver of her child’s cause of action for injuries caused by negligence”); Kirton v. Fields, 997 So. 2d 349, 356 (Fla. 2008) (listing cases, and stating that “[i]n holding that pre-injury releases executed by parents on behalf of minor children are unenforceable for participation in commercial activities, we are in agreement [*11] with the majority of other jurisdictions.”).
Second, many courts rejecting parents’ right to bind children to pre-injury releases have relied on legal principles recognized by Alabama, as discussed above. For example, courts have relied in part on the principle that parents may not bind a child to a settlement releasing post-injury claims without court approval. Galloway, 790 N.W.2d 252, 2010 WL 4365953, at *6 (“As the Washington Supreme Court has noted, if a parent lacks authority without court approval to compromise and settle her minor child’s personal injury claim after an injury has occurred, ‘it makes little, if any, sense to conclude a parent has the authority to release a child’s cause of action prior to an injury.'”) (quoting Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 834 P. 2d 6, 11-12 (Wash. 1992)); accord Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381, 386 (N.J. 2006); Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 634 N.E.2d 411, 414-15, 199 Ill. Dec. 572 (Ill. App. Ct. 1994). Courts have also relied on the policy, also recognized in Alabama, of the state’s role of protecting minors from harm. See, e.g., Kirton, 997 So. 2d at 357-58; Hojnowski, 901 A.2d at 386; Meyer, 634 N.E.2d at 414-15.
Third, the only published decisions from [*12] other jurisdictions that have bound children to pre-injury releases executed by a parent or guardian on the child’s behalf have done so in the context of a “minor’s participation in school-run or community-sponsored activities.” Kirton, 997 So. 2d at 356 (citing Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 274 Cal. Rptr. 647 (1990); Sharon v. City of Newton, 437 Mass. 99, 769 N.E. 2d 738 (2002); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E. 2d 201, 205 (1998). By contrast, this court is not aware of a single case, that has not been overturned, that has held these clauses to be binding in the context of a for-profit activity. 2
2 In Cooper v. Aspen Skiing Co., the Colorado Supreme Court reversed a Colorado appellate court’s holding that a parent’s waiver on behalf of a minor was binding in favor of a for-profit ski company. 48 P.3d 1229, 1230-31 (Colo. 2002). That case was subsequently superseded by a statute that stated that “[a] parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.” Colo. Rev. Stat. § 13-22-107(3). The fact that Colorado’s legislature, not courts, modified the default rule that a contract with a minor is voidable suggests that changing [*13] this default rule should be a legislative choice.
C. Application to the Case at Bar
The court concludes, based on the law of Alabama as well as persuasive authority from other jurisdictions, that the Release signed by Thompson on J.T.’s behalf is not binding on J.T.
First, J.T. is a minor, so the applicable default rule under Alabama law is that any contract made with J.T. is voidable.
Second, there is no exception under current Alabama law that requires that this court apply a different rule under the facts of this case. For example, the policy considerations that the Alabama Supreme Court discussed in Peck, of ensuring that minors receive medical care and do not receive windfalls, do not apply to the facts of this case. This is not a case about a child receiving medical care, rather, it is a case about a child participating in a recreational event.
Third, under Alabama law, a parent may not bind a child to a settlement releasing the child’s post-injury claims without express court approval. This court agrees with the rationale of other jurisdictions that it would be completely illogical if, despite this rule, a parent could bind a child, before any injury occurs, to an exculpatory clause [*14] releasing parties from any liability for injuries which might be caused in the future, simply by signing a contract on the child’s behalf.
Fourth, the weight of authority in other jurisdictions suggests that the release in this case is not binding. The majority rule in jurisdictions throughout the United States is that a parent may not bind a child to a liability waiver. Moreover, and more significantly, no published decision that has not been overturned holds that a parent may bind a child to a liability waiver in favor of a for-profit entity, such as the Monster Mountain Defendants in this case. The few cases that have upheld a pre-injury waiver have made a point of emphasizing that the policy reasons for doing so are based on the fact of the defendant being a non-profit sponsor of the activity involved, such as with school extra-curriculars.
Based on all of the above considerations, the court concludes that, [HN7] under Alabama law, a parent may not bind a child to a pre-injury liability waiver in favor of a for-profit activity sponsor by signing the liability waiver on the child’s behalf. Accordingly, the Release Thompson signed on J.T.’s behalf, based on authority given by J.T.’s parents, [*15] does not bar J.T. from asserting a negligence claim against the Monster Mountain Defendants. Summary judgment on this issue in favor of the Monster Mountain Defendants, therefore, is due to be DENIED. 3
3 The court does not hold that an indemnity agreement, such as that contained in another clause of the Release, signed by parents in order for their child to be allowed to participate in a dangerous activity, would not be enforceable against the parties. That issue is not presented.
V.CONCLUSION
For the foregoing reasons, the Motion for Summary Judgment (Doc. #30) is ORDERED DENIED.
Done this 9th day of December, 2010.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE
A specific statute, a badly written release and an equine liability statute sink instructors and business in horse riding accident.
Posted: June 6, 2011 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Release (pre-injury contract not to sue) Leave a commentPowers v. Mukpo et al., 12 Mass. L. Rep. 517; 2000 Mass. Super. LEXIS 566
This case could have been easily beaten if just one of the arguments could have been won. Rely on a Good Release not a bad statute!
This is a very confusing decision with the court first throwing out defenses, then allowing them then throwing them out again.
In Powers v. Mukpo et al., the plaintiff sued everyone involved in his accident. The parties and their relationship create a complicated case to understand the facts. The decision covers every aspect of the case from start to finish and creates a very confusing decision. I’ll start by explaining the parties and the facts of the case and then get into the legal discussion.
Parties
The Plaintiff Powers took horseback riding lessons from Windhorse Dressage Academy. Windhorse was using property and the accident took place on property known as Woodlock Farm. Windhorse was owned by Mukpo. Whitman was the instructor teaching Powers who was employed by Windhorse. Woodlock is owned by DeCicco’s.
DeCicco’s were dismissed from the suit by an earlier motion for summary judgment.
Facts
The plaintiff, a novice rider, was hurt when the horse he was riding reared and fell over on him. This had occurred once before and Mukpo knew of that incident. Supposedly this had something to do with arthritis the horse had.
Massachusetts has a statute ALM GL ch. 128, § 2B Operation of Riding Schools and of Certain Stables Licensed and Regulated. That requires all riding schools and instructors to be licensed. Whitman, Mukpo and Windhorse were not licensed at the time of the accident.
Summary of the legal arguments.
Release
The first issue the court addressed was the release. The release only referenced “Woodlock Farm, its instructors, and agents.” Based on this language, the court held that only Mukpo could be protected by the release. Mukpo was an agent of Woodlock in this case. Whitman and Windhorse were not covered in the release.
Under Massachusetts law, a release is void if the defendant fails to follow the statute affected by the release. Basically this is similar to a negligence per se argument. If you don’t follow the law, you can’t avail yourself of the defenses that may be available. Whitman was excluded from the benefit of the release, if she had been protected by the release. (Why this argument was necessary I’ve not determined. However it does lead to good educational information.)
Al although Whitman was not protected by the release because she was not a named party covered in the release, she was also not protected by the release because she had violated a state statute affecting her profession.
In other words, since Whitman’s professional judgment was involved, and because regulations are generally tailored to ensure that decisions such as this are made only by qualified instructors, Whitman’s violation of her statutory duty precludes enforcement of the release to shield her from liability.
Mukpo, Whitman and Windhorse did not have a release. They relied upon the release created by the owner of the stable and land, Woodlock. Because the language of the release was not broad enough and because Windhorse was operating on the land under a contract Windhorse was not an agent of Woodlock. Mukpo and Whitman where employees of Windhorse so thus they could not be agents or employees of Woodlock also. So now, under a different argument, none of the defendants in this motion could be protected by the release.
The court then stated, Whitman could be considered an agent of Woodlock, however because she was not licensed, she could not be protected by the release.
Equine Statute
The court finally looked at whether the Massachusetts Equine Statute provided protection to any of the defendants. G.L.c. 128, § 2D(b) Equine Activities; Sponsors; Liability; Required Warnings; Definitions. The court stated the statute protected equine professional from suits over injuries resulting from the inherent risks of equine activity.
However, the statute also has a section that excludes protection if the equine professional did not determine if the ability of the student was sufficient to ride the horse involved. The statute required the instructors to determine if the student’s skills matched the horse. Here the court found the defendants had not done their diligence, had not met the statute. The relevant statute section states:
Nothing in subsection (b) shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or person:
…..
(ii) provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity, and determine the ability of the participant to safely manage the particular equine based on the participant’s representations of his ability;
The plaintiff was a beginning or novice rider and the horse had a known propensity to rear. The earlier time the horse had reared an experienced rider had been able to jump off the horse and avoid being crushed by the horse when it fell over backwards. Here the rider was a beginner without the necessary experience to know what to do or how to escape from the situation.
Because the defendants had not met the requirements of the Massachusetts Equine Liability Act they could not be protected by the act.
The court held that the defendants’ motion for summary judgment was denied.
So Now What?
This case is very confusing to read, however it does provide some insight, most of which I’ve covered several times in the past.
1. Equine liability Acts have very limited value. No matter how they are written the acts of the horse can always be attributed to the acts of a human and a lawsuit can be made by an injured plaintiff. In this case, the defendants failed to meet the requirements of the act.
I’ve said it several times before. Equine Liability Acts are 100% effective; no horse had been sued since they were enacted. However suits against horse owners and trainers, stables and riding schools are still going up.
2. No matter who you are, make sure you are covered by a release. Make sure when you go to work for someone that very specifically in the release you or your class of people are protected. Make sure that if you are part of a class of people that your class is directly named in the release also.
By class I mean if you are an employee; make sure the release says your employers name and all employees. If you are an independent contractor the release must name the person who has hired you and contractors and/or agents.
3. Have your release written by a professional. This release might have been, however it was written for people who had very little to do the lawsuit and could not be used to protect them. The release protected the people named in the release.
Hire an attorney who understands your operation the risks of your operation and what needs to be covered and protected. If Mukpo or Windhorse had hired a knowledgeable attorney to review this release she would have known to be licensed and would have a release that protects her and her employees.
4. Never ever, never, ever, never ever violate a statute. Never violate a statute that was designed to cover you or protect the people you work with.
In Short.
A. Buy a good insurance policy that will protect you and your employees and any agents or contractors you hire.
B. Make sure you meet or surpass any state laws.
C. Have a professional release written to protect you and your employees.
D. Make sure you understand the laws of the state you operate in so that understand what you can and cannot do.
E. Never rely on Equine Statutes.
What do you think? Leave a comment.
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Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter
Posted: May 30, 2011 Filed under: Cycling, Michigan, Release (pre-injury contract not to sue) | Tags: Bicycle Demo Release, Bicycle Release, Bicycle Rental, Mackinac Island, Michigan, Release, Waiver Leave a commentDuncan, et al., v. Ryba Company, 1999 U.S. Dist. LEXIS 12424
However other states would have found problems with the issues in this case.
A couple was on Mackinac Island Michigan and decided to rent bikes. The plaintiff noticed the seat, and pedals were loose and before leaving asked the shop to fix both. She was assured that both had been fixed by the shop before leaving on their ride.
After a short distance, the plaintiff knew the seat had not been fixed and she and her husband decided to take the bikes back and rent them from somewhere else. As she turned the bike around to go back, she lost control, the brakes failed, and she crashed in front of an oncoming horse drawn carriage. The horse kicked the plaintiff causing her injuries.
The plaintiff and her husband sued the bicycle rental shop. The lower court granted the defendant’s motion for summary judgment, and the case was appealed.
So?
The court first looked at release law in Michigan. To be valid a release under Michigan’s law must be fairly and knowingly made. A release is not valid under Michigan’s law if:
(1) the releasor was dazed, in shock, or under the influence of drugs,
(2) the nature of the instrument was misrepresented, or
(3) there was other fraudulent or overreaching conduct.
The plaintiff first claimed the release was not valid because they were not informed the slips of paper, in other places called deposit slips, where releases. The plaintiff also claimed she did not have her reading glasses. The court interpreted this argument as the plaintiff claimed she did not read the release, and therefore, the release should not be valid. However, the court quickly dismissed this argument with the statement “It is well settled under Michigan’s law that a party’s failure to read release language before signing the document does not invalidate a proper release.” The court also found that for a release to fail because it was not identified as such to the plaintiff would also not work as a defense. However, the court stated the law “the law [does not] require an explanation that the document is a release or waiver of rights.”
For the release to fail, misrepresentation or fraud must be used to induce the plaintiff to sign the release. A simple misrepresentation or fail to explain the release will not void the release. A misrepresentation must be made with the purpose and intent to mislead or deceive the signor. There must be the fraudulent intent to mislead the signor.
The plaintiff then claimed an employee of the defendant said the releases were for the deposit on the bikes. However, the court struck down this argument in two ways.
First the court pointed out if the plaintiff would have read the document, she would have realized it was a release. The release was three sentences, each, which stated the release of liability. The second point was the plaintiffs could not point to the actions of the defendant’s employee as an intentional with the intent to deceive or induce the signature.
The plaintiff argued an amended complaint should be allowed to be filed that alleged the acts of the defendant were grossly negligent. However, the court denied the motion to amend the complaint and thus the gross negligence claim because the plaintiff could not point to anything in the facts that rose to the level of gross negligence.
Gross Negligence under Michigan’s law is defined as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.”
The court also pointed out that even though the bicycle seat was not fixed, the plaintiff continued to ride the bicycle rather than walk the bicycle back to the shop. The acts of the defendant, if the plaintiff continued to ride the bike, could not have been so bad to be grossly negligent.
“Simply labeling negligence allegations as conduct amounting to gross negligence is not enough to satisfy plaintiffs’ burden in this case.”
So Now What?
Although the defendant won this lawsuit, in other states this case might have gone differently.
As I have repeatedly said, make sure your release is clear and evident on its face. Your release should state it is a release or the signor is giving up future legal rights. Don’t hide your release from your clients.
There are also the ethical issues of hiding a release inside documents or identified as something else.
The second issue is telling the plaintiff the bike was fixed when it wasn’t or not fixed correctly. In many jurisdictions, this could have given rise to a misrepresentation and fraud claim that may have won in many jurisdictions.
As much as courts follow the law, the ethics of the situation can always come into play with the judge and will definitely come to play with the jury. The defendant may have the law on their side but can lose because the jury sees what the defendant did as just “not right.”
Treat your customers honestly and you will increase your chances dramatically in staying out of court.
What do you think? Leave a comment.
James H. “Jim” Moss
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and 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 manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk
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Duncan, et al., v. Ryba Company, 1999 U.S. Dist. LEXIS 12424
Posted: May 30, 2011 Filed under: Cycling, Michigan, Release (pre-injury contract not to sue) | Tags: Bicycle Demo Release, Bicycle Release, Lakewview Bike Rental, Mackinac Island, Michigan, Release, Rental Release, Ryba Company Leave a commentTo Read an Analysis of this decision see
Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter
Duncan, et al., v. Ryba Company, 1999 U.S. Dist. LEXIS 12424
Linda Duncan, et al., Plaintiffs, v. Ryba Company, Defendant.
Case No. 2:98-cv-194, CONSENT CASE
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN, NORTHERN DIVISION
1999 U.S. Dist. LEXIS 12424
August 6, 1999, Decided
August 6, 1999, Filed
DISPOSITION: [*1] Defendant’s motion for summary judgment granted and plaintiffs’ motion to amend the complaint denied. Case DISMISSED.
COUNSEL: For LINDA DUNCAN, JIM DUNCAN, plaintiffs: Harry Ingleson, II, Lyon & Ingleson, Cheboygan, MI.
For RYBA COMPANY, defendant: Paul M. Brewster, Lewinski & Brewster, Sault Ste. Marie, MI.
JUDGES: TIMOTHY P. GREELEY, UNITED STATES MAGISTRATE JUDGE.
OPINION BY: TIMOTHY P. GREELEY
OPINION
OPINION
Plaintiffs Linda Duncan and her husband, Jim Duncan, filed this lawsuit against defendant Ryba Company for injuries sustained by Linda Duncan. Defendant has filed a motion for summary judgment, and plaintiffs have filed a motion to amend their complaint. The parties filed a consent to proceed before the undersigned pursuant to 28 U.S.C. § 636(c). A hearing was held on June 1, 1999. Plaintiffs were ordered to file an affidavit supporting their motion to amend their complaint. Plaintiffs filed an affidavit and defendant has filed a responsive pleading to the affidavit.
On August 2, 1996, the Duncans rented two bicycles from Lakeview Bike Rental on Mackinac Island, Michigan. Defendant Ryba Company operates Lakeview Bike Rental on the Island. Prior to taking [*2] the bicycles, plaintiff Linda Duncan signed a release which stated in part:
I hereby assume full responsibility for the use of Bicycle No. …. The owner of the Bicycle assumes no liability for injury to me while I am using same. I do hereby certify that I have this day thoroughly examined the above machine and find the same with all equipment thereon in a safe and satisfactory condition.
Plaintiff Linda Duncan alleges in her original complaint that she noticed that the pedals and handlebars were loose and that the bicycle had no brakes. She immediately notified defendant’s employee and requested that necessary repairs be made on the bicycle. She also asked if the seat could be lowered. According to the complaint, the bicycle was returned to plaintiff with assurances that the repairs had been made. Plaintiff began to ride the bike and immediately noticed that the repairs had not been made. Plaintiff attempted to turn the bicycle around to return to the rental place. However, she lost control and fell into the path of an oncoming horse drawn carriage. Ms. Duncan was kicked by a horse pulling the carriage. Jim Duncan sues for loss of consortium. Plaintiffs request [*3] judgment in the amount of $ 125,000 against defendant.
James and Linda Duncan filed an affidavit after the hearing in this matter to clarify the factual allegations in their complaint and proposed amended complaint. After receiving the “deposit slips,” which also contained the release language, the Duncans were helped by a male who made no representations about the mechanical fitness of the bicycles. The employee encouraged Linda Duncan to ride a boys’ bicycle. Linda Duncan noticed the seat was loose and asked that it be tightened. The employee took some action to tighten the seat. Nothing else was done to the bicycle. As Linda Duncan began to ride the bicycle she noticed “that the seat was still loose and also heard some clicking noise involving the pedals/chains.” Apparently the Duncans decided that they would return the bicycles and rent elsewhere. When Linda Duncan applied the brakes on her bicycle, she was surprised that they did not work. She then fell attempting to dismount the bicycle.
Presently before the Court is defendants’ Motion for Summary Judgment, filed pursuant to Fed. R. Civ. P. 56. Plaintiffs have filed a response and the matter is ready for decision. [HN1] Summary judgment [*4] is appropriate only if the moving party establishes that there is no genuine issue of material fact for trial and that he is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the movant carries the burden of showing there is an absence of evidence to support a claim or defense, then the party opposing the motion must demonstrate by affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Id. at 324-25. The nonmoving party cannot rest on its pleadings but must present “specific facts showing that there is a genuine issue for trial.” Id. at 324 (quoting Fed. R. Civ. P. 56(e)). While the evidence must be viewed in the light most favorable to the nonmoving party, a mere scintilla of evidence in support of the nonmovant’s position will be insufficient. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Ultimately, the Court must determine whether there is sufficient “evidence on which the jury [*5] could reasonably find for the plaintiff.” Id. at 252.
Defendant argues that the release signed by plaintiff entitles defendant to summary judgment on all claims. [HN2] Under Michigan, law a party may contract against liability for damages caused by ordinary negligence. Dombrowski v. City of Omer, 199 Mich. App. 705, 502 N.W.2d 707 (1993); Skotak v. Vic Tanny International, Inc., 203 Mich. App. 616, 513 N.W.2d 428 (1994). The validity of a release is controlled by the intent of the parties to the contract. A release is valid if it is fairly and knowingly made. A release is invalid if (1) the releasor was dazed, in shock, or under the influence of drugs, (2) the nature of the instrument was misrepresented, or (3) there was other fraudulent or overreaching conduct.
Plaintiffs do not claim that the language contained within the release was improper or insufficient to release defendant from liability for ordinary negligence. Plaintiffs claim that the release is invalid because defendant’s employees only informed plaintiff Linda Duncan that she had to sign the two slips of paper containing the release language to get her deposit back. Plaintiffs [*6] claim that they were not informed that the slips of paper also contained release language. In their response brief it is claimed that plaintiff Linda Duncan did not have her reading glasses with her. The court presumes that plaintiff Linda Duncan is claiming that she did not read the release prior to signing it. [HN3] It is well settled under Michigan law that a party’s failure to read release language before signing the document does not invalidate a proper release. Dombrowski, Mich. App. at 710, 502 N.W.2d at 710. Nor does the law require an explanation that the document is a release or waiver of rights. Paterek v. 6600 Limited, 186 Mich. App. 445, 449, 465 N.W.2d 342, 344 (1990). A release will be held invalid if misrepresentation or fraud was used to induce the releasor to sign the document. A simple misrepresentation will not invalidate an otherwise valid release. In Paterek, the plaintiff, who injured himself playing softball, sued the filed owner. Plaintiff had signed an official team roster and contract which contained release language. Plaintiff alleged that he was never informed that the roster was a release of waiver of his rights. The court [*7] rejected plaintiff’s claim of misrepresentation.
We believe, however, that plaintiffs have misconstrued the meaning of “misrepresent” in this context. . . . [A] misrepresentation must be made with the intent to mislead or deceive. In the instant case, none of the documentary evidence available to the trial court raised a reasonable inference that defendant or its agents intentionally or fraudulently misrepresented the nature of the roster/contract. At the most, the document may have been innocently misrepresented, which would not have been sufficient to invalidate the release. Therefore, there was no genuine issue of material fact and plaintiffs’ claim was barred by the release.
This conclusion is also supported by the principle that one who signs a contract cannot seek to invalidate it on the basis that he or she did not read it or thought that its terms were different, absent a showing of fraud or mutual mistake. As we stated in Moffit v. Sederlund, 145 Mich. App. 1, 8, 378 N.W.2d 491 (1985), lv. den. 425 Mich. 860 (1986), ” [HN4] failure to read a contract document provides a ground for rescission only where the failure was not induced by [*8] carelessness alone, but instead was induced by some stratagem, trick, or artifice by the parties seeking to enforce the contract.” Id. See also Christensen v. Christensen, 126 Mich. App. 640, 645, 337 N.W.2d 611 (1983), lv. den. 417 Mich. 1100.45 (1983). This principle is directly applicable to the facts of this case, where plaintiff admits to signing the release contract, but claims that he was not aware of the terms of the document.
186 Mich. App. at 449, 465 N.W.2d at 345.
Plaintiffs claim that defendant’s employee told plaintiff Linda Duncan that the bike rental agreements were for her deposit. Plaintiffs argue that defendant’s employee misrepresented the nature of the bike rental agreement. It is clear that the bike rental agreement was used to record plaintiffs’ deposit. It is also clear that in very simple language the bike rental agreement released defendant’s liability. The agreement contains three simple sentences. Each of the sentences involve the release of liability. The alleged employee’s statement that the agreement was for the deposit was a correct statement. At most, a simple misrepresentation may have occurred. [*9] However, plaintiff Linda Duncan’s failure to read the release language is no defense to an otherwise valid release that she signed. Plaintiffs can point to no evidence to support a claim that defendant’s employee fraudulently induced Linda Duncan to sign the rental agreement. The record supports the conclusion that plaintiff Linda Duncan signed a valid release of liability. Defendant is entitled to dismissal of plaintiffs’ claims of negligence.
Plaintiffs have filed a motion to amend their complaint to add new theories of negligence, a claim of gross negligence, and a violation of the Michigan Consumers Protection Act. [HN5] Leave to amend a complaint “shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a). The court may deny leave to amend a complaint where the amendment is brought in bad faith, will result in undue delay or prejudice to the opposing party, or is futile. Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995), cert. denied, 517 U.S. 1121, 116 S. Ct. 1354, 134 L. Ed. 2d 522 (1996).
Plaintiffs negligence claims include failure to properly train, failure to warn of bike, pedestrian and horse traffic, and other dangers on the [*10] Island. However, the release that Linda Duncan signed in the bike rental agreement covered ordinary negligence. Plaintiffs have attempted to overcome the release language by proposing a claim of gross negligence. [HN6] Under Michigan law it is recognized that a release clause absolving a party from liability for gross negligence is against public policy. Universal Gym Equipment v. Vic Tanny International, 207 Mich. App. 364, 367, 526 N.W.2d 5, 7 (1995), vacating remand 209 Mich. App. 511, 531 N.W.2d 719. Plaintiffs assert that defendant was grossly negligent for “failing to inspect and maintain its equipment, with added knowledge of the use to which the equipment was going to be put. . . .” Gross negligence has been defined as conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results. Jennings v. Southwood, 446 Mich. 125, 136-37, 521 N.W.2d 230 (1994). It appears that although plaintiffs label defendant’s conduct as gross negligence, they are merely suing defendant for negligence. Plaintiffs have failed to explain to this court how defendant was grossly negligent in failing to inspect and maintain its [*11] equipment as opposed to simply negligent in failing to inspect and maintain its equipment. At most, plaintiffs have alleged that defendant’s employee failed to properly tighten the loose seat after plaintiff Linda Duncan complained that the seat was loose. This allegation fails to rise to the level of gross negligence. Moreover, it appears that plaintiff Linda Duncan continued to ride the bicycle, without any perceived difficulty, even after she discovered that the bicycle seat was still loose. Plaintiffs also allege that the brakes on the bike were defective. Plaintiffs have failed to submit allegations or factual circumstances that could possibly cause the alleged negligence to rise to gross negligence. Simply labeling negligence allegations as conduct amounting to gross negligence is not enough to satisfy plaintiffs’ burden in this case.
Plaintiffs also seek to add a claim for a violation of the Michigan Consumer Protection Act, M.C.L. § 445.903, M.S.A. § 19.418(3). While plaintiffs reassert the statutory language in their proposed amended complaint, the proposed amended complaint fails to allege how defendants may have violated the act. Moreover, plaintiffs have failed to submit [*12] a brief with their motion to amend their complaint which could assist the court in understanding the proposed theory of liability. Absent any explanation as to how the factual allegations could possibly justify a violation of the Michigan Consumer Protection Act, as stated in the complaint, the court will not allow the proposed amendment.
Accordingly, defendant’s motion for summary judgment will be granted and plaintiffs’ motion to amend the complaint will be denied.
Dated: August 6, 1999
TIMOTHY P. GREELEY
UNITED STATES MAGISTRATE JUDGE
JUDGMENT
In accordance with the opinion issued this date,
IT IS HEREBY ORDERED that plaintiffs’ motion to amend complaint (Docket # 28) is DENIED.
IT IS FURTHER ORDERED that defendant’s motion for summary judgment (Docket # 26) is GRANTED and this case is DISMISSED.
IT IS SO ORDERED.
Dated: August 6, 1999
TIMOTHY P. GREELEY
UNITED STATES MAGISTRATE JUDGE
PA court upholds release in bicycle race.
Posted: May 23, 2011 Filed under: Assumption of the Risk, Cycling, Racing, Release (pre-injury contract not to sue) Leave a commentScott v. Altoona Bicycle Club, d/b/a the Tour de-Toona, 2010 Pa. Commw. Unpub. LEXIS 513
One release was signed online.
In this case, an injured cyclist from a road race sued the race, an individual; USA Cycling, Inc, (USAC); the Commonwealth of Pennsylvania, the PA Department of Transportation, (DOT); and Huston Township, a Pennsylvania municipality. Why? Because she crashed during a bicycle race and was rendered a paraplegic. The more defendants the greater the possibility that one defendant will not have a defense.
To enter the race the plaintiff signed two different releases. One was an online application to obtain a license to race from the USAC. The second release was to enter the Tour de Toona signed at the time of the race.
The Tour de Toona was a seven (7) day bicycle race. During a 19.2 mile circuit while making a 90 degree turn at the end of a downhill the plaintiff rode off the road through grass into a 30 inch drop off.
The plaintiff sued for negligence, gross negligence and recklessness against the various defendants. The defendants raised the defenses of release, assumption of the risk and the governmental entities raised the defense of immunity. The defendants filed a motion for summary judgment based on the releases signed by the plaintiff, assumption of the risk, and the immunity defense. The trial court granted the motion, and the plaintiff appealed to the dismissal.
Arguments
The plaintiff argued on appeal that the releases were void as a matter of law because the two releases were exculpatory agreements. Also, under Pennsylvania law releases could not block claims of gross negligence and recklessness, and the defendants were liable because the defendants were in a better position to prevent her harm.
The court looked at release law in Pennsylvania. For a release, or more specifically the exculpatory clause in the release, to be valid:
(1) the clause must not contravene public policy, (2) the contract must be between persons relating entirely to their own private affairs and (3) each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.
The plaintiff did not argue whether the releases were contracts of adhesion so the court did not discuss the third component.
In order for an exculpatory agreement to violate public policy under Pennsylvania law the matter of interest, or the subject matter of the contract, must be the public, the state, an employer-employee relationship, public service, public utility, common carriers (airlines or trains, etc.) or hospitals. The bicycle race was none of those. Although the race did provide a benefit to the community, it did not rise to the level necessary to be a violation of public policy.
The second part of the requirement is the agreement is between private parties. A government entity or the public as a whole was not a party to the release. This argument is similar to the first in that the examples that void the release are identical. However, one is a contract that affects those parties and the second is a contract with those parties.
The court then looked at the language of the releases to determine whether the language of the releases was clear so that one party would understand that they are reliving the other party of any liability.
1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in case of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.
The court can only look at the language in the release, within the four corners of the document. No outside information or evidence can be used to interpret the release or to explain it.
Consequently, the court found the releases valid.
The language in these releases clearly and unambiguously reflects Appellees’ intention to be released by Scott from all liability, even for Appellees’ negligence, for injuries she may suffer during a USAC event generally, and the Tour de ‘Toona, specifically.
The court quickly dismissed the argument that the plaintiff only skimmed the releases finding it did not matter.
The plaintiff then argued the releases were not valid for claims of gross negligence. The court dismissed this argument stating Pennsylvania does not recognize gross negligence.
Supporting the aforementioned argument as to gross negligence is the Pennsylvania Supreme Court’s declaration, that “there are no degrees of negligence in Pennsylvania” common law, only differing standards of care in certain circumstances.
Because the release mentioned negligence, under Pennsylvania law, that includes gross negligence, since there is no gross negligence in PA, the release covered everything. A circular argument, to some extent, but effective.
However, the court did raise the issue that if the release had been in indemnification agreement, gross negligence would have to have been identified in the release as something to be barred in the release.
The plaintiff then argued that the defense of assumption of the risk was not a valid defense. The court state:
…because she did not knowingly proceed in the face of an obvious danger or an inherent risk of competitive cycling, and because the trial court ignored evidence that Scott did not assume the risk that ABC would not correct a course that was inherently dangerous.
The plaintiff argued that assumption of the risk was no longer a defense in PA because it had been merged into comparative negligence. Comparative negligence has the jury determine the percentage of fault of all of the parties. The plaintiff’s recovery is then reduced by the percentage of fault that the jury finds the plaintiff to be for his or her injuries.
However, the court had apparently been carving out exceptions to the complete merger of assumption of the risk with comparative negligence. The court had already found exceptions to the rule for strict liability claims, or were changed by statute. The court stated:
Under the doctrine of assumption of the risk, a defendant is relieved of its duty to protect a plaintiff from harm if the plaintiff voluntarily faces a known and obvious risk and is therefore considered to have assumed liability for his own injuries.
The case did not involve strict liability or a statutory exception to the merged rule. However, the releases were an express assumption of risk forms and thus could prove the plaintiff assumed the risk of her injuries and bar her claims. Remember there are two types of assumption of the risk. Express, which is a written form, and implied, which is the knowledge or imputed knowledge of the plaintiff.
An express assumption of the risk is where the plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for the plaintiff’s protection. Ordinarily, such an agreement takes the form of a contract, which provides that the defendant is under no obligation to protect the plaintiff, and shall not be liable to him for the consequences of conduct, which would otherwise be tortious.
Here one release had the specific assumption of the risk language in its release.
Another issue the plaintiff raised that the court mentioned was the race had been marketed as the “safest possible.”
Proof that the race was not the safest possible is the injury the plaintiff received. Consequently, any marketing or advertising that states any activity is safe will come back to haunt you. Here the court dismissed the statements. However, many courts have used such statements to hold the defendant liable as proof of misrepresentation and void the release.
So Now What?
Clearly, Pennsylvania law looks to see if the magic word negligence and probably gross negligence are in the language of the release.
Based upon the foregoing, we hold that claims for gross negligence and recklessness need not have been specifically mentioned in the subject re-leases in order for Appellees to have been protected in this case. Since, in strictly construing the subject releases as against Appellees, this Court finds that the intention of the parties is stated with particularity therein, Appellees have met their burden of establishing that they are released from Scott’s claims. Moreover, since the exculpatory clauses in the releases have met the necessary requirements, they are valid and enforceable.
Another issue the court reviewed was the fact the release was not being used by an organization that is marketing itself as eliminating known and typical risks of the activity. This exception can create a gray area in the law for the outdoor recreation and adventure travel industry.
If you are an activity, business or program that markets to the general public, who would believe that you have eliminated the typical or normal risks of the activity, your release must be written with extreme care and caution in Pennsylvania. You must inform the guest or participant that those risks have not been removed, and the guest or participant is assuming those risks.
The gray area arises in that only the public will know if you are an activity that in their mind has removed the typical or normal risks. Since you cannot remove all risks, you need to protect yourself contractually and legally.
This also applies to any language that can be used to prove express assumption of the risk. Under Pennsylvania law, a plaintiff can assume the risk of his or her injuries if they do so in writing. A well written release not only should include the specific language needed to bar the claim from a legal standpoint but also should prove the plaintiff assumed the risk of their injuries.
Pennsylvania may be the exception to the rule where your release should contain the words’ gross negligence. However, the wording should something that identifies the release bars claims of negligence and gross negligence rather than baring a claim of negligence and not gross negligence. Never tell the plaintiff in your release or other document how to sue you.
The plaintiff suffered a terrible injury in her accident. As I have repeatedly stated, whenever there is an accident resulting in a quadriplegic or paraplegic there is so much money on the line, there is going to be a lawsuit. No one has enough insurance in this day and age to deal with that financial burden and the attorneys are willing to risk the defenses because the payoff can be so large.
One argument that you see appearing that was appealed by the plaintiff but not reviewed by the court was the defendants were in a better position than the plaintiff to take the steps necessary to keep the plaintiff safe. This is an insidious defense that instead of relying upon the law relies upon the theory that since the plaintiff was injured; the defendant should have and could have done something to prevent the injury.
It is critical that your release and other documentation states that your client or participant, no matter what, is in charge of their life and their rescue. So often after a safety talk we have given the guest the idea that we will rescue them when it is not only impossible but to do so would put more people at risk. It is always the guest’s duty to keep them safe. A guide, outfitter or race official will help if possible, but the decision and the reaction of the guests is always the guests and solely that of the guest. Do not create a situation where you allow the guest to argue that you had the duty to keep them safe and failed.
What do you think? Leave a comment.
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Iowa does not allow a parent to sign away a minor’s right to sue.
Posted: May 10, 2011 Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: Child, Iowa, Iowa Supreme Court, Jim Moss, Minor, Parental Responsibility, Parental Rights, University of Northern Iowa, Upward Bound Leave a commentGalloway v. State of Iowa, 790 N.W.2d 252; 2010 Iowa Sup. LEXIS 109
Iowa follows the majority of states finding that the state has an interest in protecting kids from allowing their parents to think.
This case was brought by a parent whose child was hit by a car on an out of state field trip. The trip was an Upward Bound trip sponsored by University of Northern Iowa. The mother sued the State of Iowa, parent entity of the university. The University filed a motion for summary judgment based on two releases signed by the mother. The trial court granted the motion for summary judgment, and the case was appealed to the Iowa Supreme Court. There is no information on whether there was a decision by the Iowa Appellate Court or if the appeal was directly to the Iowa Supreme Court.
An appeal from the trial court to the supreme court of a state can be done, but it is very rare and only for unusual or immediate circumstances.
The sole issue the court in its opinion discussed was the issue of whether a parent could sign away a minor’s right to sue in a preinjury release.
What are you supposed to say about a case when the court quotes this statement from the plaintiff’s argument?
In particular, she [plaintiff] contends public policy should preclude enforcement of releases executed by parents because parents are ill-equipped to assess in advance the nature of risks of injury faced by children while they are participating in activities at remote locations under the supervision of others and because parents are uninformed of the nature and extent of the gravity of the injuries to which their children may be exposed when the releases are executed. [Emphasis added]
Parents are ill equipped to assess the nature of the risk facing a child? Isn’t that what parenting is all about? When I see a parent reading the ingredients on a box in the supermarket with a toddler in the cart is the parent doing that to have something to talk about that night?
The court then stated:
By signing a preinjury waiver, a parent purports to agree in advance to bear the financial burden of providing for her child in the event the child is injured by a tortfeasor’s negligence. Sometimes parents are not willing or able to perform such commitments after an injury occurs. [Emphasis added]
The court followed that statement with:
If parents fail to provide for the needs of their injured children, and the preinjury waiver in favor of the tortfeasor is enforced, financial demands may be made on the public fisc to cover the cost of care.
So the potential risk to the coffers of the State of Iowa is greater than the need to be a responsible parent. The court sent the case back to the trial court for trial.
So? Summary of the case
There were several issues that this court ignored in favor of getting to the conclusion it wanted to reach. The releases, two of them, were poorly written and did not provide any information as to what the risks of the trip were. The releases appear to be set out in full in the decision which is below.
This case was not over after this decision. The plaintiff is a fourteen year old girl who was hit by a car crossing the street. There is probably a great assumption of the risk defense that would either significantly lower the damages or possibly allow the University/State to win. If this case is not settled after this decision, then there is a significant issue at trail as to whether the child assumed the risk of the injury.
However, Iowa, with this decision falls into the category where any organization or group dealing with kids must do so very carefully. Any child without health insurance is going to look for ways to pay the bills. Any child with insurance will have an insurance company looking for reimbursement for their losses because of the injuries.
So Now What?
Isn’t that another issue that parents are tasked with? What role is a parent going to play in the future based on the reasoning of the Iowa court? It seems that what the child is going to wear to school will be the limit. If the parent is presented with the proper information the parent should decide whether the financial risks and their resources are adequate to deal with the issues. If the parent is not presented with the proper information is it not the parent’s responsibility to study and find out what those risks are?
Youth organizations and youth group’s sole chance it to have a bill passed in the Iowa legislature that over turns this decision.
What do you think? Leave a comment.
 James H. “Jim” Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and 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 manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Outdoor Recreation Insurance, Risk Management, and Law
Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management, and Law. To Purchase Go Here:
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
If you are interested in having me write your release, download the form and return it to me.
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Release stops suit for falling off horse at Colorado summer Camp.
Posted: April 18, 2011 Filed under: Colorado, Equine Activities (Horses, Donkeys, Mules) & Animals, Minors, Youth, Children, Release (pre-injury contract not to sue), Youth Camps | Tags: Appellate Court, Child, Colorado, Gross negligence, Hamill, Minor, Parental Responsibility, Parental Rights, Rock climbing, Summary judgment, Summer Camp Leave a commentHamill v. Cheley Colorado Camps, Inc., 2011 Colo. App. LEXIS 495
I always enjoy it when people with money, sue to get more money…..
In this case, the minor plaintiff fell off a horse and suffered a broken arm. She sued for her damages. What makes this sort of amusing is the minor had attended the camp two prior years. Her mother has signed the release three consecutive times. However, the plaintiff sued.
The allegations in the complaint were the wrangler had inappropriately saddled the horse she rode. This is a classic claim used to get around equine liability acts. Equine liability acts are 100% effective. Since they have been passed no horse has been sued. However, suits against horse owners have increased.
For additional articles about equine (horse) lawsuits and why Equine Liability Acts have little value see: $2.36 M awarded to a boy kicked by horse during inner-city youth program and $1.2 M award in horseback riding fatality in Wyoming.
The district court (trial or first court) granted the defendant camp’s motion for summary judgment. And the Plaintiff appealed. The basis for the appeal was:
she was a minor and her mother did not make an informed decision, the agreement did not extinguish her negligence claims and that disputed material facts preclude the grant of summary judgment on her gross negligence claim.
The first issue the court reviewed was whether the release was valid under Colorado law. The court found there were four tests that had to be met for the release to be valid.
(1) the existence of a duty to the public;
(2) the nature of the service performed;
(3) whether the contract was fairly entered into; and
(4) whether the intention of the parties is expressed in clear and unambiguous language.
B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998) (citing Jones, 623 P.2d at 376).
The court found the first two tests were met because recreational activities create no duty to the public and are not necessary for living.
The next test was whether the contract was fairly entered into. This is a case of whether the injured party had the opportunity to go somewhere else or not participate. Whether one party was at the mercy of the other party because of unequal bargaining power. However, again, recreational activities are not something that a parent or participant is forced to undertake. On top of that the mother admitted she voluntarily signed the release…..three times.
More importantly the court found the plaintiff could have attended other camps. She was not forced to attend the defendant camp.
The last test also can be examined multiple ways. First way is, is the agreement plan on its face is it written in such a way that the parties understand what it says or should have understood what it said. Another way is whether the agreement, the release, clearly evidenced the intent of the party’s.
Here you can release one party from negligent conduct as long as the intent of the parties is clearly expressed in the contract. Here the release expressly contained language that the court found was clear to the plaintiff and her mother of the intent of the release.
The agreement sufficiently placed Hamill’s mother on notice that the “[e]quipment used . . . may break, fail or malfunction” and that “counselors . . . may misjudge . . . circumstances.” The breadth of the release persuades us that the parties intended to disclaim legal liability for negligence claims. Indeed, misjudging a situation can amount to negligence.
The classic I now did not understand the release is also looked at this point, and the court rejected that argument.
An agreement with such plain and unambiguous terms will not fail because one of the parties, in hindsight, now claims to have misunderstood the scope of that agreement — to govern only conduct outside of Cheley’s control — based on ambiguities not readily apparent within the four corners of the agreement.
The court succinctly summed up its decision about the release stating:
Because the agreement did not implicate a public duty, did not involve an essential service, was fairly entered into, and it plainly expressed the intent to release prospective negligence claims, we hold that the agreement is valid.
The court then reviewed the recently enacted Colorado statute allowing a parent to sign away a minor’s right to sue C.R.S. § 13-22-107. A recent decision by the Colorado Appellate court had thrown out a release signed by a mother because it was not sufficient to meet the requirements of the statute. See Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele which discussed the case Wycoff v. Grace Community Church of the Assemblies of God, 2010 Colo. App. LEXIS 1832.
The statute requires the parent who is signing a release for a minor to be voluntary and informed. The court stated that “A parent’s decision is informed when the parent has sufficient information to assess the potential degree of risks involved, and the extent of possible injury.” quoting Wycoff v. Grace Community Church of the Assemblies of God, 2010 Colo. App. LEXIS 1832.
Here the mother and the plaintiff knew of the risks because the plaintiff had attended the camp two prior years and had ridden horses those two years.
The final argument was made that the release did not bar claims for gross negligence. However, the court found the complaint and the other documents in the case did not plead any facts giving rise to a claim that would be a gross negligence claim. Under the Colorado law gross negligence is “willful and wanton conduct, that is, action committed recklessly, with conscious disregard for the safety of others.” Nothing in the documents indicated the defendant had acted willfully or wantonly.
One interesting part of this case was a statement quoted in the case from a deposition of the mother. The defendant’s attorney referred to Christopher Reeves, who suffered a fall from a horse becoming a quadriplegic and eventually died from the injuries. The mother answered she personally knew Mr. Reeve. If you want to do a little research, match the names of the parties, and determine who would know other movie stars.
So?
Again and again, and again, make sure you have a well written release. That was the first and best thing done in this case. The release stood up to scrutiny by the trial court and the appellate court.
The next thing is always have good facts. The court pointed out the wrangler checked the saddle two or three times before the plaintiff rode the horse which eliminated the gross negligence argument. Good facts do not mean to only defend yourself when you are going to win. It means to do things right, and you don’t have to worry and if you do have a problem you will win.
Here the wrangler had been well trained in how to deal with the situation and problems of kids at summer camps riding horses. Before the plaintiff was allowed to mount the horse the saddle was checked and double checked.
So Now What?
Hire well, train well and treat well; the three ideas to keep employees part of your defense team. Your employees do not need to lawsuits and not have a lawsuit become a forum for any employee to come back at you.
See 7 Mistakes Made by People, who are called Defendant. Hire good people to begin with. Work hard at hiring people who like people and understand the job. The job is not to show off to little kids about how great a horseman you are, the job is to get kids on horses and have them have a good time. The job is to have the kids leave the ring the same way they entered the ring with a big grin on top of a horse.
Never hire for skills except people skills. You can teach anyone to ride a horse, row a raft or run a ropes course. Finding someone who can remember to double check everything, deal with a problem child and entertain at the same time is a little harder. However, those people are out there, work harder and find them.
7 Mistakes Made by People who are called Defendant.
1. Hire and retain Uncaring Employees: Hire Well, Train Well, and Treat Well
2. Failing to Know Your Customers and why they are buying from you.
3. Failing to Treat Your Customers the Way They Want to Be Treated:
4. Examining the problem from Your Perspective: Your customer sees the problem differently than you. The customer may not even understand the problem.
5. Placing a ridiculous value on principles and pride. Principles & Pride Goethe before a Lawsuit
6. Never know Why you are being sued: Sticking your head in the sand, or passing the problem to a lawyer does not resolve the problem.
7. Forgetting What Your Mother Taught You: If you act like your mother taught you, you won’t be sued.
 James H. “Jim” Moss |
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.
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. To find out the purpose of this website go here.
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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Hamill v. Cheley Colorado Camps, Inc., 2011 Colo. App. LEXIS 495
Posted: April 18, 2011 Filed under: Colorado, Equine Activities (Horses, Donkeys, Mules) & Animals, Minors, Youth, Children, Release (pre-injury contract not to sue), Summer Camp | Tags: Cheley Camps, Equine Activities, horseback riding, Release, Star Wars, Summer Camp Leave a commentTo Read an Analysis of this decision see: Release stops suit for falling off horse at Colorado summer Camp.
Hamill v. Cheley Colorado Camps, Inc., 2011 Colo. App. LEXIS 495
Chelsea E. Hamill, Plaintiff-Appellant, v. Cheley Colorado Camps, Inc., a Colorado corporation, Defendant-Appellee.
Court of Appeals No. 10CA0138
COURT OF APPEALS OF COLORADO, DIVISION TWO
2011 Colo. App. LEXIS 495
March 31, 2011, Decided
NOTICE:
THIS OPINION IS NOT THE FINAL VERSION AND SUBJECT TO REVISION UPON FINAL PUBLICATION
PRIOR HISTORY: [*1]
City and County of Denver District Court No. 08CV6587. Honorable Herbert L. Stern, III, Judge.
DISPOSITION: JUDGMENT AFFIRMED.
COUNSEL: Roberts, Levin, Rosenberg, PC, Ross B.H. Buchanan, Bradley A. Levin, Denver, Colorado, for Plaintiff-Appellant.
White and Steele, P.C., John M. Lesback, John P. Craver, Denver, Colorado, for Defendant-Appellee.
JUDGES: Opinion by JUDGE FOX. Casebolt and Loeb, JJ., concur.
OPINION BY: FOX
OPINION
Plaintiff, Chelsea E. Hamill (Hamill), appeals the district court’s grant of summary judgment in favor of defendant, Cheley Colorado Camps, Inc. (Cheley). We affirm the judgment.
I. Facts and Procedural History
Hamill attended summer camp at Cheley in 2002, 2003, and 2004. Before attending camp each summer, Hamill and her parents signed a Liability/Risk Form (the agreement).
In July 2004, when Hamill was fifteen years old, she fell off a Cheley horse and broke her arm. Hamill sued Cheley for negligence and gross negligence, arguing that a Cheley wrangler had inappropriately saddled the horse she rode. The district court granted Cheley’s motion for summary judgment on the two negligence claims, ruling that although Hamill was a minor, the agreement barred her claims and that there was no gross negligence as a matter [*2] of law. 1
1 In addition, the district court determined that whether a saddle can slip due to negligence, or because of animal behavior, presented issues of fact under section 13-21-119, C.R.S. 2010, the equine immunity act. Because of its ruling on the agreement, however, the court also ruled that the equine act claim need not be submitted to a jury.
Hamill appeals the district court’s judgment, claiming that because she was a minor and her mother did not make an informed decision, the agreement did not extinguish her negligence claims and that disputed material facts preclude the grant of summary judgment on her gross negligence claim. We disagree and therefore affirm the judgment.
II. Standard of Review
[HN1] Summary judgment is appropriate where the pleadings, admissions, depositions, answers to interrogatories, and affidavits confirm that no genuine issue of material fact exists and judgment should be entered as a matter of law. C.R.C.P. 56(c); Jones v. Dressel, 623 P.2d 370, 373 (Colo. 1981). When asked to grant summary judgment, the district court “must resolve all doubts as to whether an issue of fact exists against the moving party.” Jones, 623 P.2d at 373. [HN2] We review a summary judgment [*3] ruling de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Bd., 901 P.2d 1251, 1256 (Colo. 1995).
Exculpatory agreements are construed strictly against the party seeking to limit its liability. Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989). However, the validity of such waivers is a question of law, which we review de novo. Jones, 623 P.2d at 376; Stanley v. Creighton Co., 911 P.2d 705, 707 (Colo. App. 1996).
III. Parental Consent to Exculpatory Agreements Affecting Minors
Hamill argues that the exculpatory clauses in the agreement do not bar her negligence claims. She reasons that the agreement is invalid under the four-part test articulated in Jones, 623 P.2d at 376, and that her mother did not make an informed decision under section 13-22-107, C.R.S. 2010, to release her prospective negligence claims. This statute states that [HN3] “[s]o long as [a parent’s] decision [to waive the child’s claims] is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education.” § 13-22-107(1)(a)(V), C.R.S. 2010 (emphasis added).
We disagree with Hamill’s position.
The agreement, and [*4] our interpretation of section 13-22-107(1)(a)(V), direct our decision.
The release language in the agreement states:
Release, Waiver of Liability and Indemnification
I, on behalf of myself and my child, hereby release and waive any claim of liability against Cheley . . . with respect to any injury . . . occurring to my child while he/she participates in any and all camp programs and activities.
I hereby agree to indemnify and hold harmless Cheley . . . with respect to any claim asserted by or on behalf of my child as a result of injury . . . .
I HAVE READ AND UNDERSTAND THE ABOVE AND AGREE TO BE BOUND BY THE TERMS OF THIS DOCUMENT.
(Emphasis by italics added.)
Another section of the agreement, labeled “Acknowledgment & Assumption of Risks and Waiver of Claims for Minors,” states:
PLEASE READ CAREFULLY BEFORE SIGNING. THIS DOCUMENT INCLUDES A RELEASE OF LIABILITY AND WAIVER OF CERTAIN LEGAL RIGHTS.
. . . .
Acknowledgment of Risks
I understand there are numerous risks associated with participation in any camping activities, including . . . horseback riding . . . . Many, but not all of these risks are inherent in these and other activities. . . .
Equipment used in the activity may break, fail or [*5] malfunction, despite reasonable maintenance and use. Some of the equipment used in activities may inflict injuries even when used as intended. Persons using equipment may lose control of such equipment and cause injury to themselves and to others.
. . . .
Counselors and guides use their best judgment in determining how to react to circumstances including . . . animal character . . . . The counselors and guides may misjudge such circumstances, an individual’s capabilities and the like.
. . . .
These are some, but not all, of the risks inherent in camping activities; a complete listing of inherent and other risks is not possible. There are also risks which cannot be anticipated.
I give my permission for my child to participate in all camp activities, including those described above. I acknowledge and assume the risks involved in these activities, and for any damages, illness, injury or death . . . resulting from such risks for myself and my child.
(Emphasis by italics added.)
Before deciding whether the agreement adequately “informed” Hamill’s mother under section 13-22-107 regarding prospective negligence claims, we first address the validity of the agreement.
A. Validity of an Exculpatory [*6] Agreement Under Jones
[HN4] We analyze the validity of an exculpatory agreement, including those involving a minor child, by examining four factors: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language. B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998) (citing Jones, 623 P.2d at 376).
1. First and Second Jones Factors: Duty and Nature of the Services
[HN5] The first Jones factor requires that we determine whether a duty to the public existed in the instant case. Jones, 623 P.2d at 376. Our supreme court has held that businesses engaged in recreational activities that are not practically necessary, such as equine activities, do not perform services implicating a public duty. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 469 (Colo. 2004).
[HN6] The second Jones factor examines the nature of the service performed. Jones, 623 P.2d at 376. Here, Cheley provided recreational camping services, including horseback riding. The services were “not a matter of practical necessity for even some members of the public,” because horseback [*7] riding is not “an essential service.” Jones, 623 P.2d at 377-78; see also Chadwick, 100 P.3d at 467; Day v. Snowmass Stables, Inc., 810 F. Supp. 289, 294 (D. Colo. 1993) (recreational equine services offered by the stable were not essential); cf. Stanley, 911 P.2d 705 (residential lease was matter of public interest, and exculpatory clause was void). The General Assembly’s enactment of section 13-21-119, C.R.S. 2010, limiting the civil liability of those involved in equine activities, underscores the fact that horseback riding is a matter of choice rather than necessity. Chadwick, 100 P.3d at 467-68.
2. Third Jones Factor: Fairness
[HN7] A contract is fairly entered into if one party is not so obviously disadvantaged with respect to bargaining power that the resulting contract essentially places him at the mercy of the other party’s negligence. Heil Valley Ranch, Inc., 784 P.2d at 784; accord Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1111 (10th Cir. 2002) (the second and third prongs of Jones inquire into the respective bargaining power of each party created by the “practical necessity” of the activity). Because horseback riding is not an essential activity, Hamill’s mother was not “at [*8] the mercy” of Cheley’s negligence when signing the agreement. See Chadwick, 100 P.3d at 469; see also Mincin, 308 F.3d at 1111 (because mountain biking was not an essential activity, no inferior bargaining power was identified); Day, 810 F. Supp. at 294 (defendants did not enjoy an unfair bargaining advantage in offering equine services).
By her own admission, Hamill’s mother voluntarily chose to sign the agreement expressly giving permission for Hamill to participate in horseback riding activities. Cf. Wycoff v. Grace Community Church, P.3d, (Colo. App. Nos. 09CA1151, 09CA1200 & 09CA1222, Dec. 9, 2010) (a waiver was insufficient to allow parents to assess the degree of risk involved and extent of possible injuries because it did not describe the activity that resulted in injury).
[HN8] In assessing fairness, courts may also examine whether the services provided could have been obtained elsewhere. See Jones, 623 P.2d at 375 (that a contract is offered on a “take-it-or-leave-it” basis does not, by itself, cause it to be an adhesion contract). The availability of other camps and other providers of horseback riding excursions is highlighted by Hamill’s mother’s deposition testimony [*9] that Hamill previously attended other camps. The record supports the district court’s conclusion that the agreement was entered into fairly.
3. Fourth Jones Factor: Intention of the Parties
Next, Hamill contends that the parties’ intention was not clearly stated in the agreement. Her claim that she only intended to release claims for “things that Cheley would have no control over” does not create a fact issue and is contradicted by the record.
[HN9] In reviewing a contract, we must enforce the plain meaning of the contract terms. USI Properties East, Inc. v. Simpson, 938 P.2d 168, 172 (Colo. 1997); B & B Livery, Inc., 960 P.2d at 136. We must also determine whether its terms are ambiguous, that is, susceptible of more than one reasonable interpretation. B & B Livery, Inc., 960 P.2d at 136. The parties’ disagreement over the meaning does not in and of itself create an ambiguity in the contract. Kuta v. Joint Dist. No. 50(J), 799 P.2d 379, 382 (Colo. 1990).
The language of the agreement here is unambiguous, and we give effect to its plain meaning. USI Properties East, Inc., 938 P.2d at 172; Kuta, 799 P.2d at 382 [HN10] (courts establish the meaning of a contract by examining the entire instrument as [*10] a whole, and not by viewing clauses or phrases in isolation).
Decisions of our supreme court also guide our examination of whether exculpatory agreements clearly evidence the parties’ intention. The Colorado Supreme Court enforced exculpatory agreements in B & B Livery, Inc. and Chadwick, which were similar to the agreement here, concluding that they clearly expressed the parties’ intent.
In B & B Livery, Inc., 960 P.2d 134, the plaintiff sued B & B to recover for injuries sustained when she fell from a rented horse. The plaintiff signed an exculpatory agreement containing the equine act’s mandatory release language warning that an equine professional is not liable for injury or death resulting from inherent risks of equine activities. See § 13-21-119(5)(b), C.R.S. 2010. The release also contained broad exculpatory language, releasing the company from “any liability in the event of any injury or damage of any nature (or perhaps even death) to [her] or anyone else caused by [her] electing to mount and then ride a horse owned or operated by B & B Livery, Inc.” B & B Livery, Inc., 960 P.2d at 135.
The plaintiff argued that the inclusion of this broad language created an ambiguity. Id. The [*11] supreme court disagreed, ruling that the agreement was written in simple and clear terms, it was not inordinately long, and the plaintiff admitted that she “really didn’t read” the release before she signed it, but was aware she was signing a release. Id. at 138 n.5. The supreme court held, based on the language of the agreement, “while we cannot be certain that if . . . [the plaintiff] had read and studied the agreement she would have signed it, there can be no dispute she intended to grant a general release to B & B.” Id. at 138.
In Chadwick, 100 P.3d 465, a participant in a back-country hunting trip sued the organizers of the trip when he was thrown off a mule and injured. Along with the equine act’s release language, the release also contained a “RELEASE FROM ANY LEGAL LIABILTY . . . for any injury or death caused by or resulting from [his] participation in the activities.” 100 P.3d at 468. In upholding the exculpatory agreement, the supreme court held that, while the agreement did not specifically include the word “negligence,” it nonetheless barred the plaintiff’s negligence claims. Id. The court reasoned that the release (1) was not inordinately long; (2) did not contain legal [*12] jargon; and (3) included the statutory release for inherent risks, but also included language releasing the defendant from “any legal liability.” Id. Therefore, the supreme court held the exculpatory language “cannot reasonably be understood as expressing anything other than an intent to release from ‘any’ liability for injuries ’caused by or resulting from'” the plaintiff’s participation in the activity. Id.
[HN11] In accordance with the public policy stated in section 13-21-119(4)(b), C.R.S. 2010, the supreme court held that parties may contract to release activity sponsors “even from negligent conduct, as long as the intent of the parties is clearly expressed in the contract.” Id.; see B & B Livery, Inc., 960 P.2d at 138.
As in Chadwick and B & B Livery, Inc., the agreement here is not inordinately long — three and a half pages. The legal jargon is minimal. Along with the statutory release language of section 13-21-119(5)(b), the agreement identifies many risks associated with camping activities, including horseback riding. The agreement, like that in Chadwick, broadly states an intent to release claims of liability for “any injury,” and like that in B & B Livery, Inc., it includes all degrees [*13] of potential injury, including the “death” of the participant. Hamill and both of her parents signed the agreement on April 27, 2004. Indeed, they also signed agreements containing the same language each of the two previous years.
The agreement covers “inherent and other risks,” noting that “[m]any, but not all, of these risks are inherent,” and stating that it is impossible to delineate a full list of risks, inherent or otherwise. Finally, the agreement repeatedly states that, by signing, Hamill’s mother agreed to release prospective claims against Cheley for “any legal liability,” “any injury,” and “any claim.” (Emphasis added by italics.) The agreement sufficiently placed Hamill’s mother on notice that the “[e]quipment used . . . may break, fail or malfunction” and that “counselors . . . may misjudge . . . circumstances.” The breadth of the release persuades us that the parties intended to disclaim legal liability for negligence claims. Indeed, misjudging a situation can amount to negligence. See Heil Valley Ranch, Inc., 784 P.2d at 781-82 [HN12] (valid exculpatory agreement need not invariably contain the word “negligence”).
To hold, as Hamill now argues, that the release did not provide [*14] greater protection than the release from liability of inherent risks provided by the equine act, section 13-21-119, would render large portions of the agreement meaningless. Heil Valley Ranch, Inc., 784 P.2d at 785 [HN13] (it is unreasonable to interpret an exculpatory agreement for an equine provider in such a way as to provide virtually no protection for the provider and render the release essentially meaningless); Chadwick, 100 P.3d at 469 (interpreting release provisions to be contingent upon satisfactory fulfillment by the provider of contractual obligations would render the release essentially meaningless). An agreement with such plain and unambiguous terms will not fail because one of the parties, in hindsight, now claims to have misunderstood the scope of that agreement — to govern only conduct outside of Cheley’s control — based on ambiguities not readily apparent within the four corners of the agreement.
Because the agreement did not implicate a public duty, did not involve an essential service, was fairly entered into, and it plainly expressed the intent to release prospective negligence claims, we hold that the agreement is valid.
B. Informed Consent Under Section 13-22-107
We next [*15] examine Hamill’s claim that her mother’s consent to release prospective negligence claims was not “informed,” as required by section 13-22-107, because she did not understand the scope of the agreement.
In 2002, the Colorado Supreme Court held that it was against public policy for parents to prospectively waive liability on behalf of minor children. Cooper v. Aspen Skiing Co., 48 P.3d 1229 (Colo. 2002). The following year, the General Assembly superseded Cooper by enacting [HN14] section 13-22-107(3), C.R.S. 2010, which allows parents to “release or waive the child’s prospective claim for negligence.” The statute declares “that parents have a fundamental right to make decisions on behalf of their children, including deciding whether the children should participate in risky activities.” Wycoff , P.3d at , 2010 Colo. App. LEXIS 1832 at *5; see § 13-22-107(1)(a)(I)-(V). The statute states that “[s]o long as the [parent’s] decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education.” § 13-22-107(1)(a)(V) (emphasis added). However, the statute does not allow a parent to waive a child’s prospective claim for “willful and wanton, [*16] . . . reckless, . . . [or] grossly negligent” acts or omissions. § 13-22-107(4), C.R.S. 2010; Wycoff, P.3d at , 2010 Colo. App. LEXIS 1832 at *6.
Relying on the “informed” language of the statute, Hamill asserts that Cheley’s failure to identify the possibility that she might fall from a horse in the manner she did invalidates her mother’s consent.
We assume that the General Assembly was aware of the Jones test when it enacted section 13-22-107(1)(a)(V), Vaughan v. McMinn, 945 P.2d 404, 408 (Colo. 1997), but required something more for the waiver of a minor’s prospective negligence claims. Wycoff, P.3d at , 2010 Colo. App. LEXIS 1832 at *46 (concluding that the statutory requirement to “inform” parents under section 13-22-107(1)(a)(V), requires something more than meeting the Jones factors). The General Assembly required that the consent to waiver by a parent be “voluntary and informed.” Wycoff, P.3d at , 2010 Colo. App. LEXIS 1832 at *6; Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004); Boles v. Sun Ergoline, Inc., 223 P.3d 724, 725 (Colo. 2010) (noting that the supreme court invalidated an exculpatory agreement without regard to the Jones factors in Cooper, 48 P.3d at 1236). 2 A parent’s decision is informed when the parent has sufficient information to assess [*17] the potential degree of risks involved, and the extent of possible injury. Wycoff, P.3d at , 2010 Colo. App. LEXIS 1832 at *11; see also Black’s Law Dictionary 346 (9th ed. 2009) (defining “informed consent” as “agreement to allow something to happen, made with full knowledge of the risks involved and the alternatives”).
2 In Boles, our supreme court addressed the effectiveness of exculpatory agreements with regard to strict products liability. The supreme court cited Cooper for the proposition that the court may invalidate such agreements based on public policy considerations, without regard to the Jones test. However, we do not read Boles as invalidating the Jones test.
In Wycoff, a minor was injured while being pulled behind an ATV on an inner tube over a frozen lake. The mother did not know her child would engage in the activity. The exculpatory agreement the mother signed in advance made no reference to the activity. Wycoff, P.3d at , 2010 Colo. App. LEXIS 1832 at *10. Thus, the mother was unable to assess the risks, or the degree of possible injury, before signing the release. Id. Accordingly, a majority of the division in Wycoff found that release legally insufficient to bar the daughter’s personal injury claims. Id. The instant case [*18] is unlike Wycoff.
1. Degree of Risk
In contrast to Wycoff, the undisputed facts in the record show that Hamill’s mother knew the activities Cheley offered. Hamill had attended Cheley and ridden the camp horses for two years before the accident. The agreement clearly indicated that horseback riding was an activity available to campers. The agreement described many of the risks associated with horseback riding at camp, and notified Hamill’s mother that it was impossible to list all risks. See, e.g., Mallett v. Pirkey, 171 Colo. 271, 285, 466 P.2d 466, 473 (1970) (recognizing that while it is impossible for a physician to advise a patient of all conceivable risks, disclosure of substantial medical risks associated with surgical decision yields valid informed consent).
The agreement included language that informed Hamill’s mother that the equipment used by Cheley could fail and that the wranglers might “misjudge” situations. Both of these possibilities envision forms of negligence. As discussed above, the agreement itself directly contradicts Hamill’s mother’s objectively unreasonable interpretation of the contract that prospective negligence claims were not waived. See Crum v. April Corp., 62 P.3d 1039, 1041 (Colo. App. 2002) [*19] [HN15] (contracts generally will be interpreted to impose objectively reasonable standards, unless the contract involves matters of fancy or taste).
Hamill’s mother testified at her deposition that she voluntarily signed the release after having “skimmed” it. She had signed the same agreement in 2002 and 2003 and agreed that, by signing the waiver, she understood that she was accepting certain risks of injury to her child. See Rasmussen v. Freehling, 159 Colo. 414, 417, 412 P.2d 217, 219 (1966) [HN16] (if a person signs a contract without reading it, she is barred from claiming she is not bound by what it says); Day, 810 F. Supp. at 294 (a party signing a contract without reading it cannot deny knowledge of its contents, and is bound by what it says). She never contacted Cheley to discuss the release form, and had no questions about the language of the release form when she signed it. Hamill’s mother further agreed that “when you sign a document, you understand you’re agreeing to the terms in that document.” See B & B Livery, Inc., 960 P.2d at 141 (plaintiff admitted she had signed other releases in the past and was familiar with the fact that some activities required releases). Hamill’s mother admitted [*20] that the first time she had read through the agreement “thoroughly” was in her attorney’s office on June 2, 2009, well after the accident. Hamill’s mother’s signature communicated to Cheley that she had read and understood the terms of the contract and agreed to be bound by them.
That Hamill’s mother may not have contemplated the precise mechanics of her daughter’s fall does not invalidate the release and does not create a genuine issue of material fact. She knew her daughter would be riding horses and she was advised that there were risks, known and unknown, associated with the activity. Indeed, Hamill’s mother acknowledged in her deposition testimony that when horseback riding, there is “a risk of a child being thrown or falling off a horse.” Hamill’s argument that her mother did not give informed consent, despite her signature on the agreement and the language in the agreement indicating the contrary, is not persuasive and does not create a genuine issue of material fact. As a matter of law, the agreement sufficiently informed Hamill’s mother about the risks involved in horseback riding.
2. Extent of Injury
The broad release language in the agreement waiving “any claims of liability,” [*21] for “any injury,” even “death,” evidences that Hamill’s mother was informed that she was waving Hamill’s prospective claims, including negligence, and had sufficient information to assess the extent of possible injuries to Hamill. At her deposition, Hamill’s mother testified as follows:
Attorney: And, you know, you knew that someone such as Christopher Reeve had been tragically injured falling off a horse?
Ms. Hamill: Yes.
Attorney: Did you personally know Mr. Reeve?
Ms. Hamill: Yes.
Attorney: And so you were aware that there were significant risks associated with horseback riding?
Ms. Hamill: Yes.
Attorney: And you were aware that your daughter was going to be doing a significant amount of horseback riding?
Ms. Hamill: Yes.
The agreement did not need to include an exhaustive list of particularized injury scenarios to be effective.
Our review of the entire record leads us to conclude that there are no genuine issues of material fact. Hamill’s mother had more than sufficient information to allow her to assess the extent of injury possible in horseback riding, and to make an “informed” decision before signing the release. See Black’s Law Dictionary 346 (definition of informed consent).
We conclude [*22] that the agreement adequately disclosed the extent of potential injuries. Moreover, because the agreement was fairly entered into and the language clearly and unambiguously presents no genuine issue of material fact as to whether Hamill’s mother was informed of the agreement’s intent to release “all claims,” including prospective negligence claims, the district court did not err in granting summary judgment for Cheley.
IV. Public Policy
Hamill next argues that public policy considerations render the agreement invalid. According to Hamill, the General Assembly’s post-Cooper enactment of section 13-22-107 is in derogation of the common law, and, as such, the agreement must be strictly construed against Cheley. While we construe the agreement against Cheley because it is the party seeking to limit its liability, Heil Valley Ranch, 784 P.2d at 784, we cannot invalidate the agreement for public policy reasons.
[HN17] The General Assembly is the branch of government charged with implementing public policies. Crawford Rehabilitation Services, Inc. v. Weissman, 938 P.2d 540, 553 (Colo. 1997). The judiciary’s role is to recognize and enforce such implementation. Id. By enacting section 13-22-107(1)(b), [*23] the General Assembly expressly superseded Cooper, 48 P.3d 1229, and empowered parents to weigh the risks and benefits of their children’s activities. Appellate courts have a fundamental responsibility to “interpret statutes in a way that gives effect to the General Assembly’s intent in enacting that particular statute.” Carlson v. Ferris, 85 P.3d 504, 508 (Colo. 2003); accord People v. Luther, 58 P.3d 1013, 1015 (Colo. 2002). The General Assembly has the authority to abrogate the common law, as it did in enacting section 13-22-107(1)(b), which directly superseded Cooper, 48 P.3d 1229. See Vaughan, 945 P.2d at 408 (if the legislature wishes to abrogate rights otherwise available under the common law, it must manifest its intent either expressly or by clear implication).
The governing statute promotes children’s involvement in horseback riding and approves the informed release of prospective negligence claims. Thus, Hamill’s public policy argument is unavailing.
V. Gross Negligence
Finally, Hamill contends genuine issues of material fact exist regarding her gross negligence claim. We disagree.
Both parties concede that [HN18] exculpatory agreements are not a bar to civil liability for gross negligence. [*24] Jones, 623 P.2d at 376; Forman v. Brown, 944 P.2d 559, 564 (Colo. App. 1996). Gross negligence is willful and wanton conduct, that is, action committed recklessly, with conscious disregard for the safety of others. Forman, 944 P.2d at 564. Whether a defendant’s conduct is purposeful or reckless is ordinarily a question of fact; however, “if the record is devoid of sufficient evidence to raise a factual issue, then the question may be resolved by the court as a matter of law.” Id.
The record shows that a Cheley wrangler checked Hamill’s saddle two to three times before the ride. Hamill’s deposition testimony indicates that a wrangler assisted in saddling her horse. Consistent with Cheley’s standard procedure, the wrangler checked the saddle again before giving the camper permission to mount the horse. Hamill testified at deposition that once she was mounted, a Cheley wrangler asked her to dismount so the wrangler could, again, adjust the saddle and stirrups. Thus, the uncontradicted deposition testimony is that the saddle was properly cinched when the ride started and that the wranglers exercised care in making sure it was done appropriately. A Cheley wrangler on foot then led the riders [*25] on a path toward a riding ring while another wrangler followed. The wrangler leading the group stopped to check for traffic before allowing the campers and their horses to walk across the road to the ring. Hamill rode approximately 100 yards from where her saddle was last checked before she fell off the horse.
While Hamill asserts that the shape of the horse and its claimed propensity to bloat its stomach made saddle slippage more likely, she did not demonstrate that, before her accident, simply tightening the girth would not address the issue. There is no evidence that Cheley’s wrangler was “willfully” incompetent, purposefully caused the saddle to slip, or recklessly disregarded the appropriate way to tack the horse. Hamill’s mother testified that she thought “Cheley has the utmost care in what they do, but mistakes happen.” Under these circumstances, we perceive no genuine issue of material fact. Hence, the district court was correct in dismissing the gross negligence claim on summary judgment. 3
3 Because we find that the agreement barred Hamill’s negligence claims, we do not need to address, as the district court did, whether saddle slippage is an inherent risk of horseback riding [*26] that implicates the equine act.
The judgment is affirmed.
JUDGE CASEBOLT and JUDGE LOEB concur.
Release stops lawsuit in Canadian Zip Line Lawsuit
Posted: April 14, 2011 Filed under: Release (pre-injury contract not to sue), Zip Line Leave a commentWins for Releases I’ve been told are Rare in BC.
Two women were zip lining when one “slammed” into the other one. The zip line company Cougar Mountain Adventures Ltd. Supposedly one person stalled 1500’ (500 meters) from the end; she did not clear the line. The second person then slammed into her.
The court held the release was valid because it was a high risk activity and there was no legislation preventing the use of a release.
See Zip-line crash victims lose lawsuit and Women hurt in zip-line collision lose lawsuit
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Electronic Signature on release in NY upheld.
Posted: March 28, 2011 Filed under: Release (pre-injury contract not to sue) Leave a commentSign up for basketball game online included agreeing to a release.
Stephenson v. Food Bank for New York City, 2008 NY Slip Op 52322U; 21 Misc. 3d 1132A; 875 N.Y.S.2d 824; 2008 N.Y. Misc. LEXIS 6704; 240 N.Y.L.J. 82
The plaintiff in this case was decked by another basketball player. The plaintiff was part of a basketball league and playing the defendant’s team. During the game, the team members were “trash talking.” After the plaintiff was fouled, he was walking to the foul line and decked. He fell to the floor suffering a broken jaw.
The plaintiff sued the league and the opposing team claiming the league and team were “negligent in its supervision, operation and control of the basketball game, its league, the referees, and the Food Bank team, and in failing to have a representative at the game to properly monitor the actions of the players”
The defendants filed the motion for summary judgment based on a release the plaintiff had signed online to register for the event and a sign in sheet he signed at the event.
The court upheld the dismissal of the lawsuit stating the online release:
… the online release submitted by Stephenson expressly releases the League from injury caused by any negligence by the League and also indicates that the signer assumes the risk and accepts personal responsibility for not only his own “action, inactions or negligence but the actions, inactions or negligence of others”. Moreover, electronic signatures are valid under New York law (State Technology Law § 304 [2]).
The court held that an electronic signature was valid on a release in New York.
Another issue that is extremely important in this case that was raised by the plaintiff was the second assumption of risk form that he signed as part of the roster. The plaintiff argued that the assumption of risk form was signed after the electronic release, and therefore, it superseded the release. This can be a real issue if you have clients sign multiple releases.
Whenever there is a conflict of terms between documents, the language in the new document controls. The court found that there was no conflict between the two documents so the second document did not eliminate the first document.
So?
This case is very instructive and good news. There are hundreds of cases interpreting state electronic signature acts as well as the federal electronic signature act. However, this is the first case where an electronic signature was upheld when used for a release.
This is an important point you need to recognize. If you have a release for your program and your guests are going to sign a release or a contract, make sure the language of the documents does not conflict so that only one, usually the weaker one survives.
The releases must say that they do not cancel each other out and both work together, legally.
This is starting to become boring, I say it so often, but your release needs to be written by an attorney that understands your program and the legal issues.
What do you think? Leave a comment.
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Wrong release for the activity almost sinks YMCA
Posted: March 14, 2011 Filed under: California, Release (pre-injury contract not to sue), Summer Camp | Tags: Adventure travel, Baseball Bat, Child, Day Camp, James H. Moss, JimMoss, Minor, Outdoor recreation, Parental Responsibility, Parental Rights, Rock climbing, YMCA 1 CommentA release must apply to the activity and the person who you want to make sure cannot sue you.
McGowan et al v. West End YMCA, 2002 Cal. App. Unpub. LEXIS 3018
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In this case, a mother signed her son up to attend a day camp sponsored by the YMCA. While attending the day camp, the child was accidentally hit in the head by another child with a baseball bat. The mother sued for the child’s injuries.
The YMCA argued that the mother had signed a release, and therefore, the YMCA should be dismissed. The mother argued that the release only applied to her, not her child because the release was unclear as to who was being released in the document. (The mother argued the release was required for her to walk around the YMCA to sign her son up for the camp.)
In this case, the YMCA used its general release for people on the premises of the YMCA as a fitness facility, for its day camp. The release did not indicate a parent would be signing for the child nor did the release look to the issues the child would encounter, only an adult using the YMCA or any other gym.
The mother argued because the release did not identify her son, the injured party, as who the release applied to the release only applied to her while she was on the premises. Nothing in the document indicated that the mother was signing a release on behalf of her son.
Like most releases used in gyms and fitness centers it is written for the adult signing up to use the gym.
Under the law, “An agreement exculpating the drafter from liability for his or her own future negligence must clearly and explicitly express that this is the intent of the parties.”
What saved the YMCA was a technicality in the language of the release. To go to the day camp, the child attending must be a member of the YMCA. The mother of the injured child was not a member of the YMCA. However, her son was. Because the release referred to the YMCA member as the person giving up their right to sue, the court held the release applied to the child not the mother. This language allowed the court to find for the YMCA.
So?
Releases are not documents you can merely find on the internet or put together based on language that sounds good. Think about the contract you used to purchase your house. It was a 10 to 20 page document used to buy something of value greater than $100,000 or so.
If someone is suing you for several million dollars do you want to rely on a document that you put together or worse stole from the business down the street.
Here again you have to make sure your release is properly written. You may have several different releases for different parties or activities. I commonly suggest that people use different paper to print the different release forms. Here the YMCA should have had a general release for use of its fitness and other facilities and a release for its day camp. One could have been printed on white paper and the other on green. Even better, put the release online and save paper.
Your release must identify who is protected by the release and who the release is going to stop from suing. In many cases, one parent will sign on behalf of a child. However, in some states, unless the language is clear, that parent may not be preventing the other parent from suing. Identify every person who can sue in the release as well as every person who cannot be sued. When in doubt, have both parents sign the release.
For information on other states where a parent can sign away a minor’s right to sue see: States that allow a parent to sign away a minor’s right to sue–Updated 2011
What do you think? Leave a comment.
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McGowan et al v. West End YMCA, 2002 Cal. App. Unpub. LEXIS 3018
Posted: March 14, 2011 Filed under: California, Legal Case, Minors, Youth, Children, Release (pre-injury contract not to sue), Summer Camp Leave a commentMcGowan et al v. West End YMCA, 2002 Cal. App. Unpub. LEXIS 3018
Denitra McGowan et al., Plaintiffs and Appellants, v. West End YMCA, Defendant and Respondent.
E029450
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION TWO
2002 Cal. App. Unpub. LEXIS 3018
March 15, 2002, Filed
NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR PURPOSES OF RULE 977.
PRIOR HISTORY: APPEAL from the Superior Court of San Bernardino County. Super.Ct.No. RCV 42286. Ben T. Kayashima, Judge.
DISPOSITION: Affirmed.
CORE TERMS: summary judgment, extrinsic evidence, ambiguous, uncontradicted, matter of law, undersigned, parol evidence, inadvertently omitted, membership, executing, daycare, lawsuit, notice, physical injuries, financial assistance, indemnity agreement, unenforceable, unambiguous, negligently, undisputed, enrollment, pertained, signature, enrolling, absurdity, enrolled, construe, supplied, pertain, signing
COUNSEL: Ritchie, Klinkert & McCallion, James E. Klinkert, James McCallion and Ralph Harrison for Plaintiffs and Appellants.
Allie & Schuster, James P. Allie and Coreen R. Walson for Defendant and Respondent.
JUDGES: Gaut, J. We concur: Ramirez, P.J., Hollenhorst, J.
OPINION BY: Gaut
OPINION
1. Introduction
Plaintiffs Denitra McGowan and Deshon McGowan, a minor, (plaintiffs) appeal judgment entered against them following summary judgment entered in favor of defendant West End YMCA (the YMCA).
Denitra McGowan enrolled her son, Deshon McGowan, in the YMCA’s summer camp daycare program. In the process of doing so, she signed various documents, including a release of liability. Deshon was injured while participating [*2] in the program. Plaintiffs filed a personal injury lawsuit against the YMCA. The trial court granted the YMCA’s motion for summary judgment on the ground plaintiffs’ lawsuit was barred by the release.
Ms. McGowan contends the trial court erred in granting summary judgment because the release only applied to physical injuries she sustained while on the YMCA premises, and did not pertain to Deshon since the release makes no reference to him and does not state that she signed the release on his behalf. She further argues that the trial court should not have considered parol evidence in determining the release applied to Deshon because the release was unambiguous. Even if it was ambiguous, plaintiffs argue, the court should have denied summary judgment because there was a triable issue as to whether the parties to the release intended it to apply to Deshon and an ambiguous release is unenforceable.
We conclude the trial court properly granted summary judgment. The release indicated it pertained to YMCA members. Since Ms. McGowan was not a YMCA member, but signed the release, it was unclear as to whom the release affected. The court appropriately considered parol evidence to [*3] determine this matter. Uncontradicted extrinsic evidence established that Deshon was the subject of the release and Ms. McGowan executed the release on his behalf. Accordingly, we affirm summary judgment in favor of the YMCA.
2. Facts and Procedural Background
The following facts are undisputed. Ms. McGowan submitted an application for YMCA financial assistance to assist her in paying for Deshon to attend the summer daycare program. In May 1998, the YMCA notified Ms. McGowan that it had approved her request for financial assistance.
On June 10, 1998, Ms. McGowan filled out and signed various YMCA forms, including a membership application for Deshon to become a member and a registration form for summer day camp. When Ms. McGowan returned the completed forms on June 12, 1998, a staff member requested Ms. McGowan to execute two additional forms, which included a general policies statement regarding YMCA members and a form release and waiver of liability and indemnity agreement. Ms. McGowan signed and returned the two forms.
On August 19, 1998, while Deshon was at summer day camp, another child accidentally struck Deshon in the head with a baseball bat. In their lawsuit, [*4] plaintiffs alleged the YMCA negligently operated the daycare center and negligently supervised Deshon and the other children enrolled in the program.
Ms. McGowan acknowledged during her deposition that her signature was on the release, but claimed she did not remember signing it. She admitted that she was not a YMCA member. Ms. McGowan further stated that she was aware she was enrolling Deshon as a YMCA member and this was done for the purpose of having Deshon attend the program while she worked.
The YMCA filed a summary judgment motion based on the theory plaintiffs’ action was barred by the release of liability. Plaintiffs filed opposition arguing that the release did not pertain to Deshon since the release did not state it applied to Deshon or that is was signed on his behalf.
The trial court granted the YMCA’s summary judgment motion on the ground it was undisputed Ms. McGowan signed the release on behalf of Deshon and therefore plaintiffs’ action was barred.
3. Discussion
Plaintiffs argue the release did not bar their action because the release does not state that Ms. McGowan signed the release on Deshon’s behalf. The release states that “THE UNDERSIGNED [*5] HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the YMCA.” Plaintiffs claim that the release was limited to a waiver of liability as to physical injuries sustained by Ms. McGowan while on the YMCA premises.
The goal of contractual interpretation is “to give effect to the mutual intention of the parties as it existed at the time of contracting . . . .” 1 When, as here, “a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible . . . .” 2 Accordingly, if the language of the contract is plain and unambiguous, and is not reasonably susceptible of a different meaning, no extrinsic evidence is admissible to prove that the parties intended a different interpretation. 3 Under those circumstances, the proper interpretation is purely a matter of law, 4 which may be resolved by summary judgment. 5
1 Civil Code section 1636. Unless otherwise noted, all statutory references are to the Civil Code.
2 Section 1639.
3 Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 37-40, 69 Cal. Rptr. 561, 442 P.2d 641.
[*6]
4 Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865, 44 Cal. Rptr. 767, 402 P.2d 839.
5 Niederer v. Ferreira (1987) 189 Cal. App. 3d 1485, 1499, 234 Cal. Rptr. 779.
On the other hand, extrinsic evidence may be admitted and considered if the contract is ambiguous. 6 If extrinsic evidence is admitted but is not in conflict, then the issue remains one of law, even though the uncontradicted extrinsic evidence may give rise to conflicting inferences. 7
6 Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co., supra, 69 Cal.2d at page 40; Niederer v. Ferreira, supra, 189 Cal. App. 3d at pages 1499-1500.
7 Garcia v. Truck Ins. Exchange (1984) 36 Cal.3d 426, 439, 204 Cal. Rptr. 435, 682 P.2d 1100; Parsons v. Bristol Development Co., supra, 62 Cal.2d at page 866, footnote 2.
[*7] “When a contract is in any of its terms or provisions ambiguous or uncertain, ‘it is primarily the duty of the trial court to construe it after a full opportunity afforded all the parties in the case to produce evidence of the facts, circumstances and conditions surrounding its execution and the conduct of the parties relative thereto.'” 8
8 Walsh v. Walsh (1941) 18 Cal.2d 439, 443, 116 P.2d 62, quoting Barlow v. Frink (1915) 171 Cal. 165, 172-173, 152 P. 290.
“‘An agreement exculpating the drafter from liability for his or her own future negligence must clearly and explicitly express that this is the intent of the parties.’ [Citation.] But ‘to be effective, a release need not achieve perfection; only on Draftsman’s Olympus is it feasible to combine the elegance of a trust indenture with the brevity of a stop sign.’ [Citation].” 9 Whether a release is ambiguous is a question of law which we review de novo. 10
9 Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 162.
[*8]
10 Baker Pacific Corp. v. Suttles (1990) 220 Cal. App. 3d 1148, 1153, 269 Cal. Rptr. 709.
We first consider whether the release is ambiguous. We conclude the release language is clear and explicit as to its terms 11 but unclear as to whose right to sue was waived since Ms. McGowan was not a YMCA member and the release stated it pertained to members.
11 Randas v. YMCA of Metropolitan Los Angeles, supra, 17 Cal.App.4th at page 163.
The first paragraph of the release is entitled “CONDITIONS OF MEMBERSHIP,” and states, among other things, that members must present their membership cards when using the YMCA’s facilities and “As a member of the YMCA you are agreeing to follow the policies, procedures and appropriate behaviors for the safety and comfort of all members and guests.” 12 The release further states, under the heading, “RELEASE AND WAIVER [*9] OF LIABILITY AND INDEMNITY AGREEMENT,” that, as a condition of the “undersigned’s” use of the YMCA facilities or equipment or participation in any way, that the undersigned release the YMCA from all liability in the event the undersigned is physically injured while using the YMCA facilities or equipment. Such language clearly is directed toward members. Therefore the release did not apply to Ms. McGowan.
12 Italics added.
Since the release does not state who was the member affected by the release, we look to the extrinsic evidence. “It has been held repeatedly, that it is not a violation of the parol evidence rule to prove by extrinsic evidence the identity of the parties to an agreement.” 13 “‘Parol evidence is competent to show whom the parties intended should be bound or benefited.'” 14 The uncontradicted extrinsic evidence in this case establishes that the release applied to Deshon.
13 Maulhardt v. Cal. Director of Public Works (1959) 168 Cal. App. 2d 723, 735, 336 P.2d 631; Branch v. Bekins Van and Storage Company (1930) 106 Cal.App. 623, 635, 290 P. 146.
[*10]
14 Maulhardt v. Cal. Director of Public Works, supra, 168 Cal. App. 2d at page 735, quoting Escondido Oil etc. Co. v. Glaser (1904) 144 Cal. 494, 499, 77 P. 1040; Branch Bekins Van and Storage Company, supra, 106 Cal.App. at page 635.
Section 1638 states that “The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.” Construing the release as applied to Ms. McGowan rather than Deshon involves an absurdity since Ms. McGowan was not a YMCA member, whereas Deshon was, and Ms. McGowan executed the other enrollment documents at the same time she was either returning or executing other documents on Deshon’s behalf for the purpose of enrolling him in day camp. Since Ms. McGowan was not a YMCA member and the other YMCA enrollment documents indicated they were signed on Deshon’s behalf, it would be absurd to construe the release as applying to Ms. McGowan rather than Deshon.
Thus, while in Hohe v. San Diego Unified School District 15 the court [*11] held the issue of the parties’ intent in executing an ambiguous release was a jury question, here the uncontradicted extrinsic evidence established as a matter of law that the release was executed by Ms. McGowan on Deshon’s behalf and applied to him. It should be obvious to all reasonable persons that language indicating Ms. McGowan was executing the release on Deshon’s behalf was inadvertently omitted from the signature line. 16 “Were we to adopt respondent’s strict interpretation of words we would be subverting the only reasonable interpretation of the instrument as a whole.” 17
15 Hohe v. San Diego Unified Sch. Dist. (1990) 224 Cal. App. 3d 1559, 274 Cal. Rptr. 647.
16 Heidlebaugh v. Miller (1954) 126 Cal. App. 2d 35, 40, 271 P.2d 557.
17 Heidlebaugh v. Miller, supra, 126 Cal. App. 2d at page 40.
In Heidlebaugh v. Miller, 18 the contract in question contained the phrase, “seller may, if [*12] he so desires, but shall not be obliged so to do, sell said property at public or private sale, with or with notice to Purchaser . . . .” 19 The court upheld nonsuit on the ground no notice of the sale was required. 20 The Heidlebaugh court concluded as a matter of law that the parties intended that the contract state “with or without notice,” and that the word, “out,” had been inadvertently omitted from the contract. 21
18 Heidlebaugh v. Miller, supra, 126 Cal. App. 2d 35.
19 Heidlebaugh v. Miller, supra, 126 Cal. App. 2d at page 36.
20 Heidlebaugh v. Miller, supra, 126 Cal. App. 2d at page 41.
21 Heidlebaugh v. Miller, supra, 126 Cal. App. 2d at page 40.
The Heidlebaugh court stated that, “‘Where, by inadvertence, words are plainly omitted from a contract, they may be supplied by construction if the context indicates what they are.'” 22 Such [*13] alteration of the contract is permitted because, “‘The court will if possible give effect to all parts of the instrument and an interpretation which gives a reasonable meaning to all its provisions will be preferred to one which leaves a portion of the writing useless or inexplicable; and if this is impossible an interpretation which gives effect to the main apparent purpose of the contract will be favored. Indeed, in giving effect to the general meaning of a writing, particular words are sometimes wholly disregarded, or supplied, or transposed. . . .'” 23
22 Heidlebaugh v. Miller, supra, 126 Cal. App. 2d at page 38.
23 Heidlebaugh v. Miller, supra, 126 Cal. App. 2d at page 38.
Here, uncontradicted evidence establishes that words indicating Ms. McGowan was signing the release on Deshon’s behalf were inadvertently omitted from the release. “A contract may be explained by reference to the circumstances under which it was made, and the matter [*14] to which it relates.” 24 Accordingly, we conclude as a matter of law the release barred plaintiffs’ action against the YMCA.
24 Section 1647.
Plaintiffs also argue the release is unenforceable because it affects public policy. Plaintiffs did not raise this argument in the trial court and thus it is waived on appeal. 25
25 In re Aaron B. (1996) 46 Cal.App.4th 843, 846.
4. Disposition
The judgment is affirmed. The YMCA is awarded its costs on appeal.
Gaut, J.
We concur:
Ramirez, P.J.
Hollenhorst, J.
Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele.
Posted: February 28, 2011 Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: Child, Church Group, Colorado, Colorado Supreme Court, Information, Insurance, Law, Minor, Parental Responsibility, Parental Rights, Plaintiff, Supreme Court, United States, Youth Group Leave a commentWycoff v. Grace Community Church of the Assemblies of God, 2010 Colo. App. LEXIS 1832
The case is a little confusing to read because there was another case that was appealed by the same parties whom this case refers to. Additionally, the act of the trial court in reducing the damages is confusing. However, this case is a very clear example of how a badly written release is going to cost the church and its insurance company millions.
A church group had taken kids to a camp for a “Winterama 2005.” The church had rented the camp for the weekend. The plaintiff was 17 and not a member of the church. Her parents had paid a reduced fee for her to attend the activity. As part of that registration her mother signed a “Registration and information” form. One of the activities was pulling them behind an ATV on an inner tube on a frozen lake.
There was a large boulder embedded in the lake. On the second loop, the plaintiff’s inner tube hit the boulder breaking her back.
The plaintiff’s mother had signed the “Registration and Information” form. On the form was the following sentence.
I will not hold Grace Community Church or its participants responsible for any liability, which may result from participation.
The case went to trial, and the jury returned a $4M verdict in favor of the plaintiff. The defendant and plaintiff appealed after the judge reduced the damages to the limits of the insurance policy of the church, $2M plus interest.
The appellate court first looked at Colorado case law on releases and the legislative history of § 13-22-107(3), C.R.S. 2010. That statute, C.R.S. § 13-22-107(3), was enacted to allow a parent to sign away a minor’s right to sue. The statute, and the decision in Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981), has a requirement that the parental decision must be “informed” and with the intent to release the [defendant] from liability. Jones v. Dressel was the first Supreme Court review of releases in the state of Colorado as they applied to recreational activities.
The court looked at the language in the “Registration and Information” form to see if it informed the parents of the activities and risks their child would be undertaking. The court looked at the language and found:
There is no information in Grace’s one-page registration form describing the event activities, nothing describing the associated risks. Stating that the children would participate in “Winterama 2005 and all activities associated with it” does not indicate what the activities would involve and certainly does not suggest they would include ATV-towed inner-tube excursions around a frozen lake.
The court also looked at prior decisions concerning releases and found that “in every Colorado Supreme Court case upholding an exculpatory clause. The clause contained some reference to waiving personal injury claims based on the activity being engaged in.”
The court concluded that:
Grace’s [the defendant’s] form made no reference to the relevant activity or to waiving personal injury claims. The operative sentence (the third one in a paragraph) states only that plaintiff will not hold Grace “responsible for any liability which may result from participation.” Surrounding sentences address other issues: the first gives permission to attend; the second consents to medical treatment; and the fourth agrees to pick up disobedient children.
… nowhere does the form provide parents with information allowing them to assess the degree of risk and the extent of possible injuries from any activity. The form is legally insufficient to release plaintiff’s personal injury claims.
The court then looked at the second major issue that has been surfacing in many outdoor recreation cases of late. The plaintiff sued claiming a violation of the duties owed by the landowner, a premises liability claim. That means that the landowner owed a duty to the plaintiff to warn or eliminate dangers, which the landowner failed to do.
The defendant argued that it was not the landowner; it had just leased the land for the weekend. However, the court found this argument lacking. The premise’s liability statute § 13-21-115(1), C.R.S. 2010, defines landowner to include someone leasing the property.
This places two very important burdens on anyone leasing land or using land.
- They must know and identify the risks of the land before bringing their clients/guests/members on the land.
- The release must include premise liability language.
The second one is relatively easy to do; however, the effectiveness is going to be difficult. The first places a tremendous burden on anyone going to a camp, park or other place they do not own for the day, weekend or week.
- Your insurance policy must provide coverage for this type of claim.
- You need to inspect the land in advance, do a due diligence to make sure you know of any risks or dangers on the land.
- You must inform your guests/members/clients of those risks.
The final issue that might be of some importance to readers is the court reviewed the legal concept of charitable immunity. At one time, charities could not be sued because they “did good” for mankind. That has evolved over time so that in most states charitable immunity no longer exists. At present, and with this court decision, the assets of the charity held may not be levied by a judgment. What that means is after someone receives a judgment against a charity, the plaintiff with the judgment then attempts to collect against the assets of the charity. Some of the assets may not be recovered by the judgment creditor because they are part of the charitable trust.
What does that mean? If you are a charity, buy insurance.
Of note in this case is the plaintiffs are the injured girl and her insurance company: The opinion states “Plaintiff and her insurer, intervenor American Medical Security Life Insurance Company (insurer).” Although set forth in the decision, her insurance company is probably suing under its right in the subrogation clause. A subrogation clause in an insurance policy says your insurance policy has the right to sue under your name or its own name against anyone who caused your damages that the insurance company reimbursed.
So?
As I have said numerous times, your release must be written by an attorney that understands two things.
- Release law
- The activities you are going to engage in.
- The risks those activities present to your guests/members/clients.
- Any statutes that affect your activity and/or your guests/members/clients.
Any release should include a good review of the risks of the activities and a description of the activities so adults and parents can read and understand those risks. Any minor who can read and understand the risks should also sign the release as proof the child assumed the risk. Assumption of the risk works to win cases against minors when the release is thrown out or in those cases where a release cannot be used against a minor.
Find a good attorney that knows and understands your activities, those risks and the laws needed to write a release to protect you.
What do you think? Leave a comment.
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
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Wycoff v. Grace Community Church of the Assemblies of God, 2010 Colo. App. LEXIS 1832
Posted: February 28, 2011 Filed under: Colorado, Legal Case, Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: ATV, church, Church Group, Exculpatory clause, Intertube, Release Leave a commentWycoff v. Grace Community Church of the Assemblies of God, 2010 Colo. App. LEXIS 1832
Taylor Wycoff, Plaintiff-Appellee and Cross-Appellant, and American Medical Security Life Insurance Company, a Wisconsin insurance company, Intervenor-Appellee and Cross-Appellant, v. Grace Community Church of the Assemblies of God, a Colorado nonprofit corporation, Defendant-Appellant and Cross-Appellee.
Court of Appeals Nos. 09CA1151, 09CA1200 & 09CA1222
COURT OF APPEALS OF COLORADO, DIVISION SIX
2010 Colo. App. LEXIS 1832
December 9, 2010, Decided
NOTICE:
THIS OPINION IS NOT THE FINAL VERSION AND SUBJECT TO REVISION UPON FINAL PUBLICATION
SUBSEQUENT HISTORY: Related proceeding at Wycoff v. Seventh Day Adventist Ass’n of Colo., 2010 Colo. App. LEXIS 1826 (Colo. Ct. App., Dec. 9, 2010)
PRIOR HISTORY: [*1]
Boulder County District Court No. 07CV35. Honorable M. Gwyneth Whalen, Judge.
DISPOSITION: JUDGMENT AFFIRMED IN PART, VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS.
COUNSEL: Wilcox & Ogden, P.C., Ralph Ogden, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant.
David Lichtenstein, Denver, Colorado, for Intervenor-Appellee and Cross-Appellant.
Cooper & Clough, P.C., Paul D. Cooper, Jeremy L. Swift, Denver, Colorado, for Defendant-Appellant and Cross-Appellee.
JUDGES: Opinion by JUDGE CONNELLY. Carparelli, J., concurs. Furman, J., dissents.
OPINION BY: CONNELLY
OPINION
Plaintiff, Taylor Wycoff, was seriously injured at a winter event held by defendant, Grace Community Church (Grace). Plaintiff and her insurer, intervenor American Medical Security Life Insurance Company (insurer), sued Grace and another defendant. Claims against that other defendant are addressed in Wycoff v. Seventh Day Adventist Ass’n, P.3d , 2010 Colo. App. LEXIS 1826 (Colo. App. Nos. 09CA1034 & 09CA1065, Dec. 9, 2010).
The jury returned verdicts against Grace totaling more than $ 4 million. The court reduced the total to $ 2 million (the limits of Grace’s insurance), awarding some $ 1.775 million to plaintiff and $ 225,000 to insurer. After prejudgment interest and costs, the court [*2] entered judgment of $ 2.6 million for plaintiff and $ 324,000 for insurer. We generally affirm but vacate the judgment, and we order the trial court to enter judgment in the higher amounts unreduced by any insurance limits.
I. Background
Plaintiff was seventeen years old at the time of the accident. Though not a church member, she was one of sixty youths to attend a three-day, two-night event that Grace called “Winterama 2005.”
Grace contracted with Seventh Day Adventist Association of Colorado (SDA) to hold the event at Glacier View Ranch, in Ward, Colorado. Grace paid SDA for rooms, meals, and use of the ranch.
Plaintiff’s father paid Grace $ 40 for plaintiff to attend the event. Grace states that plaintiff did not pay more because it awarded her a “partial scholarship.” Plaintiff and her mother signed Grace’s one-page “Registration and information” form, which Grace contends released the personal injury claims now at issue.
After arriving and checking in at the ranch, plaintiff participated in church-sponsored activities. One activity was riding an inner tube tied to an all-terrain vehicle (ATV) driven around a frozen lake. This activity had been conducted in past years by Grace, and [*3] also by SDA, without incident.
A large boulder was embedded in the lake some thirty-five feet from shore. A Grace chaperone, accompanied by another man, drove the ATV towing youth participants around the frozen lake. Plaintiff got on an inner tube, and the chaperone began towing her. On plaintiff’s second loop around the lake, the Grace chaperone drove the ATV between the boulder and shoreline. Plaintiff’s inner tube, still tied to the ATV, veered off and crashed into the boulder.
The crash broke plaintiff’s back. She was rushed to intensive care and was hospitalized for several weeks. She suffered loss of bowel and bladder control, loss of vaginal sensation, and numbness in both legs making it difficult for her to walk and unable to run, bend, or squat.
II. Enforceability of the Alleged Release
A. Background
The purported release was in a one-page “Registration and information” form. It consisted of the third sentence (emphasis not in the original) in the following paragraph:
I give permission for my child to participate in [Grace’s] Winterama 2005 and all activities associated with it. I further give consent for any medical treatment necessary to be given to my child in case of injury [*4] or sickness. I will not hold Grace Community Church or it’s [sic] participants responsible for any liability which may result from participation. I also agree to come and pick up my child should they not obey camp rules.
The form was the subject of trial testimony after the court denied Grace’s motion for summary judgment. Plaintiff testified that she knew the activities would include riding on an ATV-towed inner tube but that her mother did not know this. The trial court denied Grace’s C.R.C.P. 50 motion for directed verdict at the close of plaintiff’s case-in-chief, ruling that the jury could find either that plaintiff’s mother had not made an informed release or alternatively that Grace had acted in a reckless manner not covered by any release.
Grace did not call plaintiff’s mother to testify in the defense case. At the close of all the evidence, and outside the jury’s presence, the parties discussed whether and how the jury should be instructed on the purported release. The trial court, for reasons not reflected in the record, ruled as a matter of law that the permission slip did not release Grace. It instructed the jury that the purported release was out of the case and should no [*5] longer be considered.
B. Overview of Exculpatory Clauses Affecting Minors
[HN1] The validity of exculpatory clauses purporting to release or waive future negligence claims is governed by four factors set out in Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981). Usually, the issue turns on the final factor: “whether the intention of the parties is expressed in clear and unambiguous language.” Id.
In 2002, our supreme court held as a matter of public policy that parents cannot prospectively waive liability on behalf of minor children. Cooper v. Aspen Skiing Co., 48 P.3d 1229 (Colo. 2002). The next year, [HN2] the General Assembly superseded Cooper by enacting a statute allowing parents to “release or waive the child’s prospective claim for negligence.” § 13-22-107(3), C.R.S. 2010.
The statute superseding Cooper declared that parents have a fundamental right to make decisions on behalf of their children, including deciding whether the children should participate in risky activities. § 13-22-107(1)(a)(I)-(V), C.R.S. 2010. It added that “[s]o long [*6] as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education.” § 13-22-107(1)(a)(V). But it further provided that the statute does not permit a parent to waive a child’s prospective claim for “willful and wanton, … reckless, … [or] grossly negligent” acts or omissions. § 13-22-107(4).
C. Standard of Review
[HN3] The relevant facts are undisputed, and our review is de novo. See Wolf Ranch, LLC v. City of Colorado Springs, 220 P.3d 559, 563 (Colo. 2009) (de novo review of statutory issues); Jones, 623 P.2d at 376 [HN4] (de novo review of validity of exculpatory clause prospectively releasing liability claims). Thus, while the record does not reflect the trial court’s reasoning, we are able independently to review the form to determine whether it was a legally effective release.
D. Analysis
The statute does not elucidate what is necessary to render a parent’s decision to release a child’s prospective claims “voluntary and informed,” § 13-22-107(1)(a)(V). Grace contends this statutory language simply adopts the Jones standards for adults’ prospective releases of their own claims. We disagree.
The statute [*7] uses language not found in Jones or its progeny. The supreme court in Jones noted that the release there did not “fall within the category of agreements affecting the public interest.” 623 P.2d at 377. The inquiry relevant to this case — “whether the intention of the parties is expressed in clear and unambiguous language,” id. at 376 — does not expressly require that the decision to release one’s own prospective claims be an “informed” one. [HN5] We presume the legislature was aware of case law in this area, see Specialty Restaurants Corp. v. Nelson, 231 P.3d 393, 403-04 (Colo. 2010), and that its use of a new term was intended to have some significance. Thus, the statutory requirement that the parental decision be an “informed” one must mean something more than that, as already required by Jones, the form’s language be sufficiently clear to manifest intent to release liability.
We need not set forth in this case precisely how much information is required for a parental release to satisfy the statute. An “informed” decision — whether involving a legal or medical consent — typically means the “agreement to allow something to happen, [was] made with full knowledge of the risks involved [*8] and the alternatives.” Bryan A. Garner, Black’s Law Dictionary 346 (9th ed. 2009) (defining “informed consent”); cf. People v. Maestas, 199 P.3d 713, 717 & n.9 (Colo. 2009) (“informed consent” for decisions waiving conflict-free counsel); Garhart ex rel. Tinsman v. Columbia/Healthone, L.L.C., 95 P.3d 571, 587 (Colo. 2004) (“informed consent” for medical decisions). In the present context, however, the legislature allowed parental releases “to encourage the affordability and availability of youth activities in this state.” § 13-22-107(1)(a)(VI), C.R.S. 2010. Arguably, this legislative aim could be undercut if courts required the same level of information to release a claim as to consent to a medical procedure.
There is no information in Grace’s one-page registration form describing the event activities, much less their associated risks. Stating that the children would participate in “Winterama 2005 and all activities associated with it” does not indicate what the activities would involve and certainly does not suggest they would include ATV-towed inner-tube excursions around a frozen lake.
We are not persuaded by Grace’s argument that it was denied an opportunity to offer evidence — [*9] in particular, testimony of plaintiff’s mother — that the parental waiver was informed. We will assume for purposes of this case that a facially deficient exculpatory contract could be cured by extrinsic evidence. But cf. Brooks v. Timberline Tours, Inc., 127 F.3d 1273, 1275 n.2 (10th Cir. 1997) (noting “some dispute in the Colorado case law about whether a plaintiff’s experience or lack of experience should be considered when determining the ambiguity of a release”). Even so, the trial court did not preclude Grace from offering any evidence bearing on the validity of the purported release. And it took this issue away from the jury only after the close of all the evidence. Grace thus could have called plaintiff’s mother (whom it had listed as a potential trial witness), but it chose not to do so.
Finally, Grace’s clause does not pass muster even under Jones. [HN6] Such clauses “must be closely scrutinized,” Jones, 623 P.2d at 376, because they are “disfavored.” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004); accord Boles v. Sun Ergoline, Inc., 223 P.3d 724, 726 (Colo. 2010). A release need not contain any magic words to be valid; in particular, it need not specifically [*10] refer to waiver of “negligence” claims. Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784-85 (Colo. 1989). But, in every Colorado Supreme Court case upholding an exculpatory clause, the clause contained some reference to waiving personal injury claims based on the activity being engaged in. See, e.g., Chadwick, 100 P.3d at 468 (release detailed risks of hunting trip with animals and participant agreed to “‘RELEASE [outfitter] FROM ANY LEGAL LIABILITY … for any injury or death caused by or resulting from” participation in hunt); Heil Valley Ranch, 784 P.2d at 782 (release form stated that riding horse involved inherent risks, and participant “EXPRESSLY ASSUMES SUCH RISK AND WAIVES ANY CLAIM HE SHE MIGHT STATE AGAINST THE STABLES AS A RESULT OF PHYSICAL INJURY INCURRED IN SAID ACTIVITIES”); Jones, 623 P.2d at 372 (skydiving plaintiff released company “from any and all liability, claims, demands or actions or causes of action whatsoever arising out of any damage, loss or injury” resulting from “negligence … or from some other cause”).
Grace’s form made no reference to the relevant activity or to waiving personal injury claims. The operative sentence (the third one in a paragraph) states [*11] only that plaintiff will not hold Grace “responsible for any liability which may result from participation.” Surrounding sentences address other issues: the first gives permission to attend; the second consents to medical treatment; and the fourth agrees to pick up disobedient children.
Grace contends its “waiver included liability for ‘any’ injuries related to ‘all activities’ conducted at Winterama 2005.” But the form does not say this. And nowhere does the form provide parents with information allowing them to assess the degree of risk and the extent of possible injuries from any activity. The form is legally insufficient to release plaintiff’s personal injury claims.
III. Issues Under the Premises Liability Act
Grace contends the court made two errors under the Premises Liability Act, § 13-21-115, C.R.S. 2010. First, Grace denies being a “landowner” covered by the Act. Second, it contends that plaintiff was a “licensee” rather than an “invitee.” Because the facts relevant to these issues are undisputed, our review is de novo. Lakeview Associates, Ltd. v. Maes, 907 P.2d 580, 583-84 (Colo. 1995).
[HN7] The Act provides the sole remedy against landowners for injuries on their property. Vigil v. Franklin, 103 P.3d 322, 328-29 (Colo. 2004). [*12] A landowner’s duties turn on a trial court’s determination of whether the plaintiff was an “invitee,” a “licensee,” or a “trespasser.” § 13-21-115(3) & (4), C.R.S. 2010. The greatest duty is owed to an “invitee”: a landowner must “exercise reasonable care” to protect such a person from dangers of which the landowner knew or should have known. Lombard v. Colorado Outdoor Educ. Center, Inc., 187 P.3d 565, 575 (Colo. 2008) (construing § 13-21-115(3)(c)(I)). In contrast, a “licensee” is owed lesser, and a “trespasser” owed the least, duties. See Vigil, 103 P.3d at 328.
A. Grace was a “Landowner”
[HN8] The Act’s definition of a “landowner” is broader than the term might suggest. See § 13-21-115(1), C.R.S. 2010 (“‘landowner’ includes, without limitation, an authorized agent or a person in possession of real property and a person legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property”). Thus, a “person need not hold title to the property to be considered a ‘landowner.'” Burbach v. Canwest Investments, LLC, 224 P.3d 437, 441 (Colo. App. 2009) (citing Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1219 (Colo. 2002)).
It [*13] is not apparent why Grace seeks to avoid landowner status under the Act. The Act, meant to “protect landowners,” § 13-21-115(1.5)(e), C.R.S. 2010 (emphasis added), eliminates common law negligence claims while imposing only a duty of reasonable care toward invitees and even lesser duties toward licensees and trespassers. See Vigil, 103 P.3d at 328-29. If Grace were correct that it was not covered by the Act, it still would have owed plaintiff a duty of reasonable care and could not argue that plaintiff was a mere licensee owed only lesser duties under the Act.
In any event, we have little difficulty concluding that Grace was a landowner as defined by the Act. A landowner includes one “legally responsible … for the activities conducted … on real property.” § 13-21-115(1). This definition, which covers one “who is legally conducting an activity on the property,” Pierson, 48 P.3d at 1221, plainly encompassed Grace. It was clear, from Grace’s reservations agreement and understandings with SDA, that Grace was authorized to conduct (if not principally responsible for conducting) activities involving its group on the ranch property.
Grace’s arguments against this straightforward conclusion [*14] are unpersuasive. Its argument that SDA owned the property fails, because the Act is not limited to property owners. See Burbach, 224 P.3d at 441.
Grace further argues that it was “only present on the property for a short time” and thus “in a much worse position than SDA to know of the conditions of the property, or to know whether a particular activity would be dangerous on the property.” But [HN9] the Act is not limited to those in exclusive possession of land, see Pierson, 48 P.3d at 1220, and the Act expressly contemplates that there may be multiple landowners in a case. See § 13-21-115(4). There accordingly is no need for a binary choice as to which entity, as between Grace and SDA, was better able to protect plaintiff against injury. If Grace in fact had no reason to know of the relevant danger, that could provide a factual defense at trial rather than an exemption from the Act’s coverage.
Grace finally suggests that treating it as a landowner would lead to absurd results because everyone engaged in activities on the ranch, including plaintiff herself, would also be a landowner. The instant appeal does not present any issue regarding who, other than Grace, might have been a landowner. [*15] We note, however, that the Act’s definition of a landowner does not extend to everyone lawfully participating in activities on land; rather, it covers those “legally responsible … for the activities conducted” on land. § 13-21-115(1). It is doubtful that a mere participant such as plaintiff was “legally responsible” for the activities conducted at the ranch. Regardless, we are convinced there is nothing unfair, much less absurd, in applying the Act to Grace — an entity that indisputably was responsible for the ATV activity conducted on the ranch.
B. Plaintiff was an “Invitee” rather than “Licensee”
Grace’s contention that plaintiff was not an “invitee” but was merely a “licensee” affects the duty owed by Grace to plaintiff. If plaintiff was an invitee, then the trial court correctly instructed the jury that Grace had to use reasonable care to protect against dangers of which it knew or reasonably should have known. Lombard, 187 P.3d at 570-71, 575. In contrast, had plaintiff been a mere licensee, Grace’s duties would have been limited to actually known dangers. See Vigil, 103 P.3d at 328. We conclude that plaintiff was an invitee and, therefore, that the trial court correctly instructed [*16] the jury regarding Grace’s obligations toward her.
[HN10] An “invitee” is one who enters or remains on another’s land “to transact business in which the parties are mutually interested or … in response to the landowner’s express or implied representation that the public is requested, expected, or intended to enter or remain.” § 13-21-115(5)(a), C.R.S. 2010. [HN11] A “licensee” is one who enters or remains on another’s land “for the licensee’s own convenience or to advance his own interests, pursuant to the landowner’s permission or consent.” § 13-21-115(5)(b). The statute expressly provides that the latter category “includes a social guest.” Id.
[HN12] The principal distinction between an “invitee” and a “licensee” turns on whether that person’s presence on the land was affirmatively invited or merely permitted. The Second Restatement distinguishes an “invitation” from “mere permission” as follows: “an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so.” Restatement (Second) of Torts § 332 cmt. b (1965).
The Second Restatement [*17] gives examples of licensees whose presence is merely permitted rather than encouraged. “Examples of licensees” include those “taking short cuts across land with the consent of the possessor,” “[l]oafers, loiterers, and those who enter only to get out of the weather, with permission to do so,” and “[s]pectators and sightseers not in any way encouraged to come.” Restatement (Second) of Torts § 330 reporter’s notes (1965).
Here, Grace affirmatively encouraged, and did not simply permit, the presence of plaintiff and other youth attendees. Grace sponsored the event, secured access to the land and lodgings, and arranged for meals. It took affirmative steps — including driving plaintiff and the others to the ranch — to facilitate their attendance and participation. To further encourage plaintiff’s attendance, Grace provided her with what it describes as a “partial scholarship.”
Simply put, Grace invited plaintiff and the other youths to attend its organized event. Grace’s actions demonstrate that Grace was affirmatively interested in having youths attend the event. Plaintiff’s situation was not comparable to that of a licensee merely permitted but not invited to be on another’s land.
[HN13] Only [*18] one type of licensee is categorically deemed not to be an invitee despite having affirmatively been encouraged to enter another’s land: a “social guest.” See § 13-21-115(5)(b). As one treatise puts it, such a guest “is an invitee who is not an invitee.” 5 Harper, Gray, and James on Torts § 27.11, at 234 (3d ed. 2008).
We are not persuaded by Grace’s contention that plaintiff was merely its social guest. Social hosts do not typically require their guests to sign permission slips and pay for their hospitality. Here, unlike a social guest accepting a host’s unrequited hospitality, plaintiff attended an organized group event — for which her father paid Grace $ 40 — intended to serve the mutual interests of the attendees and sponsor.
In contrast to the inapposite licensee categories, plaintiff falls more naturally within the Premises Liability Act’s definition of an invitee. [HN14] The Act creates two sometimes overlapping subcategories of invitees: (1) those present to transact business of mutual interest, and (2) public invitees. § 13-21-115(5)(a); see also Restatement (Second) of Torts § 332 & cmt. a (1965) (creating two similar subcategories, of “business visitors” and “public invitees,” but [*19] explaining that many invitees could be placed in either class).
Grace contends that plaintiff was not an invitee because her invitation did not involve transacting business and was not extended to the general public. We disagree.
As to the former subcategory, commercial business was transacted between Grace and plaintiff: plaintiff’s father paid Grace $ 40 so plaintiff could attend the event. [HN15] That Grace ultimately may not have profited (because the $ 40 was included among monies paid over to SDA or because Grace defrayed remaining costs through award of a “partial scholarship”) is not relevant under the Premises Liability Act.
Moreover, [HN16] those present on land “to transact business in which the parties are mutually interested,” § 13-21-115(5)(a), need not invariably be engaged in commercial activity. See generally Bryan A. Garner, Black’s Law Dictionary 226 (9th ed. 2009) (definition of “business” can include “transactions or matters of a noncommercial nature”); cf. In re Parental Responsibilities of H.Z.G., 77 P.3d 848, 851-53 (Colo. App. 2003) (holding that Colorado’s long-arm statute, extending personal jurisdiction based on “[t]he transaction of any business within this state,” § 13-21-124(1)(a), C.R.S. 2010, [*20] applies to noncommercial activities; following out-of-state cases). Thus, other courts have extended “business invitee” status where nonprofit entities encouraged attendance by individuals whose presence provided no apparent economic benefit. See, e.g., Thomas v. St. Mary’s Roman Catholic Church, 283 N.W.2d 254, 258 (S.D. 1979) (visiting high school basketball player injured at a church school gymnasium was the church’s “business invitee”); Home v. N. Kitsap School Dist., 92 Wn. App. 709, 965 P.2d 1112, 1118 (Wash. Ct. App. 1998) (visiting assistant football coach at game where no admission was charged was an invitee because “[h]is presence was related to [public school district’s] business of running its schools”).
As to the latter subcategory, [HN17] one can be a “public” invitee where an invitation is extended to “the public, or classes or members of it.” Restatement (Second) of Torts § 332 cmt. c (emphasis added). Thus, a garden club member was an invitee of an estate “opened to those members of the public who were on the Palm Beach Garden Club tour of homes.” Post v. Lunney, 261 So. 2d 146, 148 (Fla. 1972). And a girl-scout leader was an invitee where a bank allowed the troop (“a segment of the public”) [*21] free use of its facilities. McKinnon v. Washington Fed. Sav. & Loan Ass’n, 68 Wn.2d 644, 414 P.2d 773, 777-78 (Wash. 1966).
Ultimately, plaintiff was an invitee because Grace’s invitation carried an implicit assurance that Grace would act with reasonable care to protect her. See Dan B. Dobbs, The Law of Torts 600 (2000) (“The real point is that [HN18] anyone who receives implicit or explicit assurance of safety is entitled to the invitee status and the reasonable care that goes with it.”). Grace’s post hoc denials of such implicit assurances are unpersuasive. Few youths would attend — and even fewer parents would allow and pay for their child’s attendance at — an overnight event whose sponsor disclaimed any intent or ability to make the event reasonably safe.
IV. Pretrial and Trial Proceedings
A. Pretrial Election
Though the case went to the jury only on a Premises Liability Act (PLA) claim, Grace argues that plaintiff should have been required to elect before trial between PLA and negligence claims. But it would have been unfair to compel such an election before resolving Grace’s contentions that it was not subject to the PLA. In any event, Grace was not prejudiced by lack of an earlier election. Cf. Thornbury v. Allen, 991 P.2d 335, 340 (Colo. App. 1999) [*22] (harmless error to instruct jury on both negligence and PLA claims).
B. Evidentiary Ruling
The trial court, over Grace’s objection, allowed into evidence the rental agreement that prohibited Grace from using the ATVs to tow anything. Grace renews its CRE 401-403 contentions that this contract was irrelevant and unfairly prejudicial.
[HN19] Trial courts have “broad discretion” to decide if documentary evidence should be admitted over relevancy and unfair prejudice objections. Uptain v. Huntington Lab, Inc., 723 P.2d 1322, 1329 (Colo. 1986). Here, it was within the trial court’s broad discretion to conclude that the rental contract was relevant and had probative value that was not significantly outweighed by any danger of unfair prejudice. That Grace used the rented ATVs for a contractually prohibited activity — the very activity that injured plaintiff — could properly be considered by the jury in evaluating whether Grace used reasonable care under all the circumstances of this case.
C. Closing Argument
Grace contends that plaintiff’s counsel’s closing argument was improper in various respects. None of Grace’s current objections was timely raised in the trial court. Indeed, after the case had [*23] been submitted, Grace’s counsel noted just one alleged error in plaintiff’s closing argument; as to that single argument, he stated, “I don’t know what a remedy for that is, but I think the record should reflect that [this argument] did occur.” The trial court responded that “[t]he record reflects what it was.”
Our review of these unpreserved objections is exceptionally limited. [HN20] There is no civil rule analogue to the criminal rule, Crim. P. 52(b), allowing plain error review. In civil damages cases, moreover, liberty is not at stake and there is no constitutional right to effective counsel. Thus, only in a “rare” civil case, involving “unusual or special” circumstances — and even then, only “when necessary to avert unequivocal and manifest injustice” — will an appellate court reverse based on an unpreserved claim of error. Harris Group, Inc. v. Robinson, 209 P.3d 1188, 1195 (Colo. App. 2009) (discussing Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 586-87 (Colo. 1984), and Robinson v. City & County of Denver, 30 P.3d 677, 684 (Colo. App. 2000)).
Grace’s unpreserved challenges to plaintiff’s closing arguments do not come close to meeting this demanding standard. The closing arguments [*24] were not plainly improper and did not result in any manifest injustice.
V. Amount of Judgment
The final issue is whether judgment should have entered in the full amount of the jury verdicts or a lesser amount covered by Grace’s insurance. The trial court reduced the judgment to $ 2 million total but, because it construed Grace’s policy to cover them, added prejudgment interest and costs. All sides challenge this amount. Grace contends the trial court acted erroneously (or at least precipitously) in construing the policy to cover prejudgment interest on top of the $ 2 million policy limits, while plaintiff and insurer contend that the amount of judgment should have been tied to the higher jury verdicts regardless of any lesser insurance coverage carried by Grace. We agree with plaintiff and insurer.
The issue turns on a construction of section 7-123-105, C.R.S. 2010. That statute dates to 1967, a year after a fractured supreme court case (generating a majority opinion, a separate concurrence, two separate dissents, and an “addendum” by the author of the majority opinion) grappled with the common law doctrine of charitable trust immunity. See Hemenway v. Presbyterian Hospital Ass’n, 161 Colo. 42, 419 P.2d 312 (1966). [*25] Surprisingly, the statute has never been construed in a published appellate opinion.
Before addressing the statute, we summarize the common law backdrop against which it was enacted. One thing was clear under Colorado common law: funds held in “trust” for charitable purposes could not be “depleted” by a tort judgment. St. Mary’s Academy v. Solomon, 77 Colo. 463, 468, 238 P. 22, 24 (1925). Later cases also stated, however, that while this “trust-fund rule does not bar an action against a charitable institution based on the tort of its agents,” “it does prohibit the levying of an execution under a judgment procured against it in such a suit on any property which is a part of the charitable trust.” O’Connor v. Boulder Colorado Sanitarium Ass’n, 105 Colo. 259, 261, 96 P.2d 835, 835 (1939), quoted and followed in St. Luke’s Hospital Ass’n v. Long, 125 Colo. 25, 28-29, 240 P.2d 917, 920 (1952).
Colorado cases thus distinguished between a permissible tort suit or judgment against a charity and the exemption of trust funds from levy or execution. In 1960, our supreme court wrote that “so-called charitable immunity does not protect from suit or judgment” and “immunity from attachment of trust [*26] funds does not come into play until such attachment is attempted.” Michard v. Myron Stratton Home, 144 Colo. 251, 258, 355 P.2d 1078, 1082 (1960).
The distinction became blurred, and confusion was spawned, where it was undisputed a defendant charity had no non-trust-fund assets available to satisfy any judgment. That was the situation in Hemenway, where the justices divided over the propriety of pretrial dismissal. Compare 161 Colo. at 45, 419 P.2d at 313 (affirming dismissal because “no useful purpose would be served by directing this action to proceed to judgment” where parties stipulated there were no non-trust-fund assets available), with id. at 46, 419 P.2d at 314 (McWilliams, J., concurring) (agreeing dismissal should be affirmed, but only because parties had stipulated to it if trust-fund doctrine remained viable), and with id. (Pringle, J., dissenting) (issue was “premature” because “in this State charitable immunity is not immunity from suit or liability for tort, but only a recognition that trust funds cannot be seized upon by execution nor appropriated to the satisfaction of tort liability”).
That confusion should not have extended to the present case, where Grace indisputably [*27] had a $ 2 million insurance policy. Even under common law it was clear that insurance funds could be executed on to satisfy a tort judgment. See O’Connor, 105 Colo. at 261-62, 96 P.2d at 836.
In any event, the author of Hemenway invited Colorado’s legislature to address the issue. See 161 Colo. at 49-53, 419 P.2d at 316-17 (addendum of Moore, J.). The General Assembly accepted this invitation a year later when it enacted the predecessor of the statute now codified as section 7-123-105. See Ch. 327, sec. 1, § 31-24-110, 1967 Colo. Sess. Laws 655.
[HN21] The statute, titled “Actions against nonprofit corporations,” does two things by its express terms. First, it removes any possible immunity from suit by providing that “[a]ny other provision of law to the contrary notwithstanding, any civil action permitted under the law of this state may be brought against any nonprofit corporation.” § 7-123-105. Second, it allows for levy and execution against otherwise immune assets of nonprofit entities “to the extent” the entity would be reimbursed by liability insurance. See id. (“the assets of any nonprofit corporation that would, but for articles 121 to 137 of this title, be immune from levy and execution [*28] on any judgment shall nonetheless be subject to levy and execution to the extent that such nonprofit corporation would be reimbursed by proceeds of liability insurance policies carried by it were judgment levied and executed against its assets”).
Thus, under the statute’s plain terms, there is no longer (if there ever was) any impediment to suits against nonprofit organizations. The statute, moreover, does not limit the amount of any resulting judgment, but simply addresses “the extent” to which any such judgment is “subject to levy and execution.” Id.
We conclude, under the plain language of the statute and under the prior common law, that the existence and amount of liability insurance provides no basis for limiting a judgment against a nonprofit or charitable defendant. Rather, the issue of liability insurance is relevant only when a plaintiff seeks to levy and execute on a judgment.
Here, therefore, it is premature to construe Grace’s insurance policy to determine the extent of its coverage, including whether the policy would cover prejudgment interest in addition to any liability limit. Regardless of insurance coverage, plaintiff and insurer were entitled to entry of judgment against [*29] Grace to the full amount of a judgment that would have been entered against a for-profit entity. Whether and to what extent plaintiff and insurer ultimately can execute on their judgment is a separate issue that need not be decided at this juncture.
VI. Conclusion
The judgment is vacated as to the amount, and the case is remanded for entry of a new judgment unreduced by any limits on Grace’s insurance coverage. The judgment is affirmed in all other respects.
JUDGE CARPARELLI concurs.
JUDGE FURMAN dissents.
DISSENT BY: FURMAN
DISSENT
JUDGE FURMAN dissenting.
Plaintiff was seriously injured at a youth retreat (Winterama 2005) sponsored by Grace Community Church. She sued Grace for negligence. The jury returned verdicts against Grace totaling more than $ 4 million. I disagree with the majority as to
(1) the duties Grace owed plaintiff under the premises liability statute,
(2) the interpretation of the parental waiver statute, and
(3) various evidentiary errors.
Therefore, I respectfully dissent.
I. Colorado’s Premises Liability Statute
I agree with the majority that Grace was a landowner under Colorado’s premises liability statute. Section 13-21-115(1), C.R.S. 2010, of Colorado’s premises liability statute provides: “For [*30] the purposes of this section, ‘landowner’ includes, without limitation, an authorized agent or a person in possession of real property and a person legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property.” See Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1221 (Colo. 2002)(construing the word “and” to distinguish between two broad classes of landowners).
As a landowner, Grace owed plaintiff duties depending on whether plaintiff was a “licensee” or an “invitee.” Subsections (3)(b) and (c) of section 13-21-115 state, in relevant part:
(3)(b) A licensee may recover only for damages caused:
(I) By the landowner’s unreasonable failure to exercise reasonable care with respect to dangers created by the landowner of which the landowner actually knew . . . .
(c)(I). . . [A]n invitee may recover for damages caused by the landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known.
The landowner’s intent in offering the invitation determines the status of the visitor and establishes the duty of care the landowner owes the visitor. See § 13-21-115(5)(a), [*31] (b); see also Carter v. Kinney, 896 S.W.2d 926, 928 (Mo. 1995). The status of the visitor and duty of care the landowner owes are questions of law for the court to decide. § 13-21-115(4) (“In any action to which this section applies, the judge shall determine whether the plaintiff is a trespasser, a licensee, or an invitee . . . .”).
If a landowner invites a person to enter his land, and the landowner either expects a commercial benefit from that person or has extended an invitation to the public at large, the person is an invitee. Restatement (Second) of Torts § 332(2), (3) & cmts. c, d, e (1965); see Carter, 896 S.W.2d at 928; see also Wolfson v. Chelist, 284 S.W.2d 447, 448 (Mo. 1955)(invitee status arises “when the owner invites the use of his premises for purposes connected with his own benefit, pleasure and convenience,” and when this occurs, “the duty to take ordinary care to prevent [the invitee’s] injury is at once raised and for the breach of that duty an action lies” (emphasis in original)(quoting Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1, 3, (Mo. 1909))). Conversely, if a landowner either permits a person’s entry onto his land or invites that person as his social guest, but the landowner [*32] does not expect a commercial benefit, that person is a licensee. Restatement (Second) of Torts § 330 cmts. a, h (1965). I conclude plaintiff was not an invitee because Grace neither expected a commercial benefit from plaintiff nor extended an invitation to the public at large.
A. Invitee Status
Section 13-21-115(5)(a) defines “invitee” as
a person who enters or remains on the land of another to transact business in which the parties are mutually interested or who enters or remains on such land in response to the landowner’s express or implied representation that the public is requested, expected, or intended to enter or remain.
The two categories of invitees in section 13-21-115(5)(a) track those identified in the Second Restatement of Torts. See Restatement (Second) of Torts § 332(2), (3) (creating categories of “business visitor” and “public invitee”). I conclude plaintiff did not satisfy either category.
1. Business Visitor
Concerning the “business visitor” category, the majority concludes noncommercial activity can confer invitee status. However, the majority’s conclusion conflicts with the opinion of another division of this court, which expressly recognized that “the General Assembly [*33] intended the ‘invitee’ status to apply in circumstances in which the ‘landowner’ receives a financial benefit from the relationship.” Maes v. Lakeview Assocs., Ltd., 892 P.2d 375, 377 (Colo. App. 1994)(citing legislative history), aff’d, 907 P.2d 580 (Colo. 1995); see also Wolfson, 284 S.W.2d at 450 (invitation to invitee must confer some “material benefit motive”); Brian A. Garner, Black’s Law Dictionary 226 (9th ed. 2009)(defining “business” as “[a] commercial enterprise carried on for profit,” “commercial enterprises,” or “[a] [c]ommercial transaction”).
The majority quotes a portion of Black’s definition of “business” for the proposition that “‘business’ can include ‘transactions or matters of a noncommercial nature.'” However, that definition has as its example, “the courts’ criminal business occasionally overshadows its civil business.” Hence, in that context, “business” means some type of purposeful activity not related to the other party, rather than business transactions “in which the parties are mutually interested.” § 13-21-115(5)(a).
Thus, I believe the majority’s holding that the “business” contemplated by section 13-21-115(5)(a) includes “transactions or matters of a noncommercial [*34] nature” (an activity that confers no commercial benefit) irreconcilably conflicts with the legislature’s carefully chosen language. Moreover, in the two out-of-state cases relied on by the majority, there is little to no analysis of this issue. In Thomas v. St. Mary’s Roman Catholic Church, the court baldly concludes the plaintiff was a “business invitee.” 283 N.W.2d 254, 258 (S.D. 1979). And in Home v. North Kitsap School District, the court merely recites its adoption of the Second Restatement to conclude that the plaintiff was an invitee without discussing the fact that the activity was noncommercial. 92 Wn. App. 709, 965 P.2d 1112, 1118 (Wash. App. 1998); see id. at 1117 nn. 17-19.
Grace’s then-youth pastor testified at trial, and it is not disputed, that when Grace received the monies from the youth for Winterama, he transferred those monies to SDA as a matter of course. Grace was thus a mere intermediary for the business transaction that occurred between plaintiff and SDA. Accordingly, because Grace derived no commercial benefit from the visit, I conclude plaintiff was not a business visitor. See Maes, 892 P.2d at 377; see also Mooney v. Robinson, 93 Idaho 676, 471 P.2d 63, 65 (Idaho 1970)(holding that the “rendition [*35] by a social guest of an incidental economic benefit to the occupier of the premises will not change the licensee’s status to that of an invitee”).
Moreover, no evidence was adduced at trial to support the trial court’s finding that plaintiff rendered financial compensation–a commercial benefit–to Grace for its supervision of her. Rather, the undisputed evidence demonstrates that every dollar Grace received it remitted to SDA, and that the chaperones were not compensated. Thus, the trial court’s conclusion that plaintiff was an invitee because “she entered on the property to transact business which was namely the promotion of spirituality, positive youth relationships for which she paid Grace to provide the supervision,” which conferred no commercial benefit on Grace, was error. See Maes, 892 P.2d at 377; see also Carter, 896 S.W.2d at 928.
2. Public Invitee
Concerning the “public invitee” category, the majority concludes invitee status may lie where the invitation applies merely to “classes or members of” the public.
However, in discussing situations where a landowner extends an invitation to “classes or members of” the public, the Second Restatement includes the term “classes or members [*36] of” in the context of a variety of landowners inviting the public at large to enter:
The nature of the use to which the possessor puts his land is often sufficient to express to the reasonable understanding of the public, or classes or members of it, a willingness or unwillingness to receive them. Thus the fact that a building is used as a shop gives the public reason to believe that the shopkeeper desires them to enter or is willing to permit their entrance, not only for the purpose of buying, but also for the purpose of looking at the goods displayed therein or even for the purpose of passing through the shop.
Restatement (Second) of Torts § 332 cmt. c (emphasis added).
Moreover, section 13-21-115(5)(a) defines “invitee” as “a person who enters or remains on the land of another . . . in response to the landowner’s express or implied representation that the public is requested, expected, or intended to enter or remain.” The commonly accepted and understood meaning of “public” is “the people as a whole: populace, masses.” Webster’s Third New International Dictionary 1836 (2002). Hence, in a “public invitee” situation the landowner must invite the public at large or imply that the public [*37] at large is expected to enter or remain. This construction satisfies the legislative purpose “to clarify and to narrow private landowners’ liability.” Pierson, 48 P.3d at 1219.
Trial evidence reveals Grace did not extend its invitation to attend Winterama 2005 to the public at large, but limited its invitation to Grace’s youth group and their friends. Grace’s then-youth pastor testified that the Winterama waiver forms were mailed only to those youth who were on a list that the church had on file, that youth group students “would pick [the forms] up Wednesday night during a program,” and that “[s]ome students took permission slips home to give to their friends.” Likewise, when plaintiff was asked how she perceived Winterama 2005 before the event occurred, she confirmed that she understood Winterama to be “essentially a church retreat.” Accordingly, I conclude plaintiff could not be a “public invitee” because there simply was no invitation to the public at large.
The majority’s reliance on out-of-state cases, to conclude the invitation may apply only to select classes or members of the public, is misplaced. In Post v. Lunney, the plaintiff was declared to be a public invitee because she [*38] had been “invited to enter [land] which had been opened to those members of the public” who were on a tour of area homes. 261 So. 2d 146, 148 (Fla. 1972). There is no indication that the small subset of the public of which the plaintiff was a part was the only group or type of group that was allowed to tour the homes. The Post court expressly relied on subsection 2 of section 332 of the Restatement (Second) of Torts, which reads, “A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.” Id. (emphasis added). And in McKinnon v. Washington Federal Savings & Loan Ass’n, where the court determined the plaintiff also was a public invitee, the defendant held its premises open “for the free use of local clubs and organized groups for meetings and conferences, either during regular office hours or in the evenings,” 68 Wn.2d 644, 414 P.2d 773, 774 (Wash. 1966), and not solely for the plaintiff’s select group. Thus, in both Post and McKinnon, the premises were otherwise held open to the public at large.
B. Licensee (Social Guest) Status
A member of Grace’s youth group asked plaintiff to attend Winterama 2005, [*39] and Grace provided its permission (after it received the parental consent form) before she could do so. Thus, I conclude plaintiff was a social guest (licensee) of Grace, and Grace owed plaintiff the duty to make safe dangers of which it was aware. § 13-21-115(3)(b), (5)(b); see Carter, 896 S.W.2d at 928.
Section 13-21-115(5)(b) defines “licensee” as “a person who enters or remains on the land of another for the licensee’s own convenience or to advance [the licensee’s] own interests.” A social guest is one who has received a social invitation, and is a subclass of licensees. § 13-21-115(5)(b) (“‘Licensee’ includes a social guest.”); see Carter, 896 S.W.2d at 928.
The majority concludes plaintiff was not a social guest because “social hosts do not typically require their guests to sign permission slips and pay for their hospitality.” Although the majority implies that social hosts may require their guests to sign permission slips, I believe the majority’s conclusion overlooks the important difference between “invitation” and “permission.” When courts decide if an individual is an invitee or a licensee, the distinction between invitation and permission is critical:
Although invitation does [*40] not in itself establish the status of an invitee, it is essential to it. An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so. . . .
Mere permission, as distinguished from invitation, is sufficient to make the visitor a licensee . . . ; but it does not make him an invitee, even where his purpose in entering concerns the business of the possessor.
Restatement (Second) of Torts § 332 cmt. b. Thus, if there is no invitation extended to the prospective plaintiff as would be extended to the general public, he or she is not an invitee, but rather a licensee who is on the land “pursuant to the landowner’s permission or consent.” § 13-21-115(5)(b).
Grace restricted its permission to attend Winterama 2005 to its own youth and their friends whose parents had waived in writing their right to hold Grace responsible for “any liability which may result from participation.” Grace consented to the attendance of the youth on condition that the waiver was signed. The [*41] precondition of a waiver demonstrates that the Winterama participants were permitted to come rather than invited, which “is sufficient to make the visitor a licensee.” Restatement (Second) of Torts § 332 cmt. b.
The Second Restatement’s definition of “social guest” affirms that:
[A]lthough a social guest normally is invited, and even urged to come, he is not an “invitee,” within the legal meaning of that term . . . . He does not come as a member of the public upon premises held open to the public for that purpose, and he does not enter for a purpose directly or indirectly connected with business dealings with the possessor. The use of the premises is extended to him merely as a personal favor to him.
Restatement (Second) of Torts § 330 cmt. h(3).
Plaintiff was not a member of Grace, and her attendance at Winterama 2005 was due solely to the influence of a male classmate of hers at the Denver School of the Arts, who expressly persuaded her to come to Winterama. She testified that her perception of Winterama 2005 was that “we would leave our everyday lives and go try to further our spiritual enlightenment.” See Garner, Black’s Law Dictionary 776 (social guest is “[a] guest who is invited [*42] to enter or remain on another person’s property primarily for private entertainment as opposed to entertainment open to the general public”); Webster’s Third New International Dictionary at 1008 (a guest is “a person to whom hospitality . . . is extended”).
Further, the majority surmises that Grace’s invitation carried an “implicit or explicit assurance” that Grace would act with reasonable care to protect plaintiff. The majority reasons that “[f]ew youths would attend — and even fewer parents would allow and pay for their child’s attendance at — an overnight event whose sponsor disclaimed any intent or ability to make the event reasonably safe.” However, in its section on licensees, the Second Restatement explains that
there is a common understanding that the guest is expected to take the premises as the possessor himself uses them, and does not expect and is not entitled to expect that they will be prepared for his reception, or that precautions will be taken for his safety, in any manner in which the possessor does not prepare or take precautions for his own safety, or that of the members of his family.
Restatement (Second) of Torts § 330 cmt. h(3). Thus, as a social guest, plaintiff [*43] could rely on precautions that a landowner would take as he would for himself or for his family.
The evidence reveals the leaders regarded the youth attending Winterama 2005 as “social guests” because the leaders took precautions for the safety of the attendees as they would for their own safety. One chaperone testified he personally rode the inner tube towed by the ATV around the lake three or four times before plaintiff rode the inner tube. And the then-youth pastor testified that the leaders “walk[ed] pretty much the entirety of the lake, or [they] [would] get on the ATVs and drive it, too,” to inspect the lake for “potential hazards” exhaustively before the ATV activity started. He said these hazards were the type that “could cause a safety issue with the activities that [they] were going to do on the ice” and that included sharp objects that could “cause the tube to puncture.”
Another chaperone who drove the ATV–and who also participated in the inspection of the lake–testified that he had used an ATV and inner tubes to tow people “700 to 1000 times” and that he had in fact towed his own daughter behind the ATV on the lake such that “[he] treated [his daughter] just like any of [*44] the other students.” Because the evidence shows Grace’s chaperones not only took precautions that they would have for their own safety, but also took the same care for members of their own families as for other attendees, plaintiff was a licensee of Grace at Winterama 2005.
Because plaintiff was a licensee, Grace was entitled to additional protections under the premises liability statute. See Pierson, 48 P.3d at 1219 (overriding purpose of premises liability statute was “to clarify and to narrow private landowners’ liability to persons entering their land, based upon whether the entrant is a . . . licensee[] or invitee”). Accordingly, Grace was liable to plaintiff only “with respect to dangers created by the landowner of which the landowner actually knew.” § 13-21-115(3)(b)(I). Because the jury was not so instructed, I would reverse the judgment and remand for a new trial.
II. Colorado’s Parental Waiver Statute
The majority interprets the word “informed” in section 13-22-107, C.R.S. 2010, Colorado’s parental waiver statute, to mean “made with full knowledge of the risks involved and the alternatives” (quoting Garner, Black’s Law Dictionary at 346). The majority implies Grace’s waiver [*45] form was facially deficient because it delineated neither the specific activities in which the youth would engage nor the risks associated with each activity. Because I conclude the majority’s resolution of this issue vitiates the legislative intent expressed in the statute, I respectfully dissent.
The legislature explicitly stated the purpose of Colorado’s parental waiver statute:
(I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist;
(II) Public, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits, and without the measure of protection these entities may be unwilling or unable to provide the activities;
(III) Parents have a fundamental right and responsibility to make decisions concerning the care, custody, and control of their children. The law has long presumed that parents act in the best interest of their children.
(IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk;
(V) These [*46] are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education; and
(VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child . . . .
§ 13-22-107(1)(a)(I)-(VI). Hence, the legislature intended (1) to afford children the “maximum opportunity” to engage in “essential activities” having “certain risks”; (2) to uphold and effectuate the choices of parents for their children “concerning the risks and benefits of participation in” potentially risky activities; and (3) to give “public, private, and non-profit entities . . . a measure of protection” by insulating them from liability for negligent conduct during “activities that may involve risk.” Id. Based on these purposes, the legislature stated, “A parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.” § 13-22-107(3). Accordingly, the word “informed” [*47] ought to be construed in light of the statutory scheme, which is geared toward expanding children’s access to activities involving risk yet simultaneously contracting the liability exposure of entities providing those activities, so that those entities might have a “measure of protection” and not be “unwilling or unable to provide the activities.” § 13-22-107(1)(a)(I), (II), (VI).
A. Informed Consent
Section 13-22-107 does not define the term “informed.” I agree with the majority that “informed” as defined in Black’s Law Dictionary at 346–“made with full knowledge of the risks involved and the alternatives”–should govern this analysis. Accordingly, I conclude the term “informed” in section 13-22-107 means only that a parent be “informed” as to the possible risks involved.
Applying this definition, I conclude the waiver in this case was sufficient, for several reasons. First, the waiver identified the general nature of the activities to which the waiver applied: “Winterama 2005 and all activities associated with it.” Second, the waiver identified the possible risks associated with Winterama 2005–“injury or sickness”–and even required the parent to consent to any medical treatment Grace [*48] might need to administer or pay for in the event of such injury or sickness. Third, even though the waiver did not state verbatim, “I recognize I have the right to sue Grace in the event the negligence of Grace or its agents causes my child personal injury, but I give up that right voluntarily,” the waiver nevertheless more than accomplished this purpose–by stating the signing parent “will not hold [Grace] or it’s [sic] participants responsible for any liability which may result from participation.” Thus, I conclude the waiver was sufficient to give Grace the “measure of protection” from legal liability that section 13-22-107 envisions.
In canvassing the case law where the supreme court upheld the validity of waivers, the majority concludes that a waiver must “contain[] some reference to waiving personal injury claims based on the activity being engaged in.” I disagree with this conclusion because I believe the majority reads the statute more broadly than the legislature intended. The majority would require public, private, or nonprofit organizations to include in their waiver forms a plethora of activities and, with respect to each, “assess the degree of risk and the extent of possible [*49] injuries from any activity.” I believe the logical result would be absurd disclosure requirements, such as,
Children attending Winterama 2005 will be staying in cabins. The paths and steps leading to each cabin may be snow-packed and icy. There is a risk that your child may slip and fall on the paths or steps and a fall may result in serious injuries including, without limitation, broken bones, concussions, and paralysis,
or lengthy booklets describing every conceivable activity and associated possible injury. I disagree with this approach because, in my opinion, it would unduly expose those entities to liability for activities that the entities inadvertently failed to identify and include in their parental waiver forms, or for activities that they could not possibly know or anticipate. Further, such an approach runs contrary to the legislative intent of providing “a measure of protection against lawsuits,” and without that measure of protection, these entities may be unwilling or unable to provide these “essential activities” to children in Colorado. I believe it is not reasonable to expect organizations operating under section 13-22-107 to anticipate every permutation of a recreational [*50] event.
Moreover, I would not engage in what I respectfully believe to be the majority’s parsing of the waiver. The waiver at issue is addressed to the everyday, commonsense parent. I submit the everyday, commonsense parent would not analyze what each sentence of a waiver specifically addresses apart from each other sentence, but rather would comprehend what the waiver addresses en toto: a release of his or her child’s prospective claim for negligence. See § 13-22-107(3).
B. The Parental Waiver Affirmative Defense
In addition, I conclude the trial court committed reversible error when, on the morning of closing arguments, it sua sponte precluded the jury from considering the affirmative defense of parental waiver. See Pollock v. Highlands Ranch Community Ass’n, 140 P.3d 351, 354 (Colo. App. 2006).
The day before closing arguments occurred, the trial court originally determined that a jury instruction concerning the effect of the waiver could not be given because the supreme court assigned the determination of the effect of the waiver to the trial court as a question of law. Cf. Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989). But after counsel for Grace pointed out the [*51] court’s resolution of this issue essentially would be “to take that from the jury” and that the court “need[ed] to state the basis” for its ruling, the court said it would “hold off on the jury instruction piece.”
When the issue arose again late that same day, after the close of evidence and during the jury instructions conference, plaintiff’s counsel argued the language in the waiver did not suffice to make plaintiff’s mother “informed.” The court asked plaintiff’s counsel to state his position on the affirmative defense of waiver, and he said,
What I think — what I would like to see the Court do, Your Honor, is to declare the effect of this release, and I think the effect of this permission slip doesn’t say this, does not have the effect of releasing the defendant’s [sic] from the premises liability claims.
The court responded, “I want to take a few minutes to think about this. . . . We’ll be in recess.” After that exchange and a brief statement from counsel for SDA, the record abruptly ceases. There is nothing about the court’s thoughts on the waiver until early the next day during its instructions to the jury right before closing arguments. At this time, the court announced to the [*52] jury that “the Court has ruled as a matter of law that Exhibit 85 [the parental waiver] is not a defense to Plaintiff’s claims in this case” and struck the waiver from the record with no further elaboration.
In my view, the trial court erred in taking the issue away from the jury. I acknowledge that “[t]he determination of the sufficiency and validity of an exculpatory agreement is [primarily] a question of law for the court to determine.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981). However, contrary to the majority, I conclude Grace presented sufficient evidence for the trial court to submit to the jury the parental waiver as an affirmative defense.
“An affirmative defense ‘is a legal argument that a defendant, who is capable of being sued, may assert to require the dismissal of a claim or to prevail at trial.'” Paratransit Risk Retention Group Ins. Co. v. Kamins, 160 P.3d 307, 319 (Colo. App. 2007)(quoting State v. Nieto, 993 P.2d 493, 507 (Colo. 2000)). The parental waiver defense, if successful, would allow Grace to avoid premises liability. Accordingly, it is an affirmative defense.
Because waiver is an affirmative defense, the defendant has the burden to prove waiver. C.R.C.P. 8(c); [*53] see City of Westminster v. Centric-Jones Constructors, 100 P.3d 472, 480 (Colo. App. 2003)(“Failure to mitigate damages is an affirmative defense under C.R.C.P. 8(c) on which the defendant bears the burden of proof.”); see also Fidelity & Deposit Co. v. Colo. Ice & Storage Co., 45 Colo. 443, 449, 103 P. 383, 386 (1909)(defendant had burden of proof to sustain proffered affirmative defense); Tracz v. Charter Centennial Peaks Behavioral Health Sys., Inc., 9 P.3d 1168, 1174 (Colo. App. 2000)(concluding defendants “met their initial burden of production to establish their affirmative defense”). And section 13-22-107 is an affirmative defense to premises liability because section 13-21-115 “does not exclusively limit defenses and does not abrogate statutorily created defenses, which were available to landowners before the 2006 amendment and afterward.” Tucker v. Volunteers of Am. Colo. Branch, 211 P.3d 708, 711 (Colo. App. 2008), aff’d sub nom. Volunteers of Am. v. Gardenswartz, P.3d , 2010 Colo. LEXIS 861 (Colo. No. 09SC20, Nov. 15, 2010).
At trial, under C.R.C.P. 8(c), the trial court’s only responsibility was to assess whether Grace presented sufficient evidence to support the affirmative defense of [*54] parental waiver. See Fair v. Red Lion Inn, 943 P.2d 431, 437 (Colo. 1997)(holding that failure to mitigate damages, an affirmative defense under C.R.C.P. 8(c), “will not be presented to the jury unless the trial court determines there is sufficient evidence to support it”); cf. Stauffer v. Karabin, 30 Colo. App. 357, 363-64, 492 P.2d 862, 865 (1971)(where doctor in malpractice suit presented evidence that his failure to inform plaintiff of all risks attendant to an operation was consistent with community medical standards, “the determination then becomes one for the jury and a directed verdict in favor of plaintiff would not be warranted”).
I believe the trial court misapprehended its duty with regard to the legal sufficiency of Grace’s parental waiver. The question whether a parental waiver is “voluntary” is answered if the parent is shown to have signed the waiver. The question whether a parental waiver is “informed” is answered if the waiver on its face defines the possible risks and the general nature of the activities to which the waiver applied. See Garner, Black’s Law Dictionary at 346 (“informed” is “made with full knowledge of the risks involved and the alternatives”). To this [*55] end, the parental waiver statute focuses on the risks involved in recreational activities for children as it affirms the conscious choices that parents make for their children. § 13-22-107(1)(a)(I), (IV). Thus, if the parental waiver is both “voluntary” and “informed,” the trial court must submit the affirmative defense of parental waiver to the jury.
I would conclude Grace presented sufficient evidence to support its affirmative defense of parental waiver. The parental waiver was signed voluntarily because, as plaintiff herself testified, her mother signed the waiver two days before Winterama 2005 occurred. And the parental waiver on its face not only informed mother of the possible risks associated with Winterama 2005– “injury or sickness”–but also revealed her willingness to “not hold [Grace] or it’s [sic] participants responsible for any liability which may result from participation.” Thus, I conclude the trial court should have permitted the jury to consider Grace’s affirmative defense of parental waiver, and believe it erred in not doing so.
Moreover, the way the trial court ruled on the evidence of waiver throughout the case–until it removed Exhibit 85 from the trial evidence [*56] and jury’s consideration–reveals that Grace had no reason to expect it had to clear up any lingering questions of fact for the jury to consider the affirmative defense of parental waiver. For example, before trial, Grace moved for summary judgment on the issue of waiver, but the court ruled there was a question of fact “as to whether a permission slip was signed on behalf of Plaintiff.” (The original apparently was lost by the hospital.) In response, during plaintiff’s case-in-chief, counsel for Grace established that plaintiff’s mother in fact had signed the waiver, and that Grace received the waiver before the Winterama event.
Based on this uncontroverted testimony, at the close of plaintiff’s case Grace moved for a directed verdict. But the court found “the jury could conclude that there was inadequate notice to the mother” and “a jury could conclude that the activity [in question] was a reckless act or grossly negligent act for which a parent is not permitted to waive the child’s prospective claim for such conduct.” The court concluded this despite the fact that plaintiff in her complaint did not assert any claim for tortious conduct rising above the level of simple negligence. [*57] Again, in response, Grace used both expert testimony and lay testimony in its case to establish that the ATV activity was done in a safe manner. Nevertheless, as noted, on the morning of closing arguments the court told the jury that it could not consider the parental waiver. At that point, its role should have been limited to deciding whether Grace had presented sufficient evidence to support the existence of the parental waiver as an affirmative defense. The court did not so limit its role.
Accordingly, I would reverse the judgment and remand for a new trial.
III. The ATV Rental Contract
The majority concludes the trial court did not abuse its discretion in allowing the ATV rental contract into evidence over Grace’s objection. I respectfully disagree. There was nothing in the contract, and no evidence regarding the parties’ intent was adduced, to suggest plaintiff’s injury was a danger that Blue Sky Motors–who was not a party to this case–and Grace, the two parties to the ATV contract, knew about or should have known about in this premises liability case.
For all these reasons, I would reverse the judgment and remand for a new trial.
Minnesota decision upholds parent’s right to sign away a minor’s right to sue.
Posted: February 21, 2011 Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue), Youth Camps | Tags: Baseball, Baseball Camp, Child, Coach, JimMoss, Minnesota, Minor, Outdoor recreation, Parental Responsibility, Parental Rights, Summer Camp Leave a commentCase was a baseball camp where the minor was injured during horseplay.
Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
This is a pretty simple case. The defendants operated a baseball camp on the campus of the University of Minnesota. The plaintiff’s mother had signed her son up for the camp, online or electronically. On the last day after lunch a group of students went to the courtyard. The plaintiff sustained a permanent eye injury when they started throwing woodchips from the courtyard at each other.
The father sued on behalf of his son. The trial court, a district court in the opinion, granted the defendant’s motion for summary judgment. The father on his and his son behalf appealed.
The plaintiff first argued that the release, or assumption of the risk agreement as it was termed in the decision, should be “thrown out” because it could not be produced. Because the mother had signed online there was no signed document. On top of that, the system used by the defendant did not produce any document indicating who had signed what documents.
However, the defendant was able to show that the mother had signed other documents just like the release. A roster of those kids that had attended the camp that summer, with the injured minor’s name on it was produced. The camp through a director, also testified that if the mother had not signed the release, the minor would not have been allowed to attend the camp.
The mother’s deposition was also introduced. She could not deny filing out the forms online even though she did not remember the forms.
The plaintiff’s then argued that the language of the release did not cover the injury the minor sustained. The language only spoke to baseball and as such the release only covered injuries that the minor could have received playing baseball. Horsing around during free time therefore, was not covered by the release. The plaintiff also argued the language that excluded the claims; the release sentence was separate from the sentence that identified the risks. As such the release should be very narrowly construed.
Neither argument was accepted by the court. The court found that the release covered more than just baseball, and the release had to be read as a whole so the risk was incorporated into the exculpatory sentence.
The plaintiff then argued the exculpatory clause violated public policy. The court dismissed this argument. The court found that the baseball camp was not educational in nature. The training could be found through other sources and playing baseball was not essential or of great importance to members of the public.
So?
The rules of evidence have a procedure for admitting into trial documents that have been lost. The rule is based on procedure. The procedure to be allowed to go to a baseball camp required a parent to sign many documents. The child would not have been allowed at amp without signing all of the documents. A procedure was set up to show the mother had to have signed the release because her son was at the camp.
You should create a procedure for your business, camp or program. The best one I’ve seen for whitewater rafting was created by Mountain Waters Rafting. Guests were given their PFD’s (life jackets) when they handed in their releases. If a guest had on a PFD, the guest had signed a release.
The more you can identify a procedure that you used the same way every time, the easier to introduce a lost piece of paper.
Electronically, there can be several ways to make sure you can prove a person read and signed the release online. I first suggest you always tie a release into a credit card. The credit card company knows more about the holder of a credit card then you ever will. If the credit is accepted to pay for something on line, and the name on the release matches the name on the credit card you can prove the release was signed. If the trip or camp was paid for a release was signed.
You should also have a system that you are notified that each person has signed the documents. Create a way to download the information, name, address, etc. date and exact time the release was signed to your business computer and do so regularly. That information can be matched up, name, date and time to the credit card and payment used. Match this with your receipt of payment from the credit card company and you should have proof.
Make sure your release is written to cover all the risks of your program, business or activity. Here the language was broad enough the baseball program was covered for horseplay. How often do you feed guests, transport guests, and have guests just walking around that could be a chance to be injured. Your release needs to stop litigation, all types of litigation, not just what you face what you are selling to the public.
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Sometimes your editorials come true: Even more so when they occurred in the past, and you found it later.
Posted: January 24, 2011 Filed under: Health Club, Release (pre-injury contract not to sue) Leave a commentI wrote an editorial for the SNEWS Law Review three years ago about having gyms, fitness clubs, incorporate the manufactures into their release to prevent lawsuits. See Do Health Clubs have a Duty to protect the Manufacturers of Health Club Equipment? In the lawsuit Universal Gym Equipment, Inc. v Vic Tanny International, Inc., 207 Mich. App. 364; 526 N.W.2d 5; 1994 Mich. App. LEXIS 443 the exact issue resulted in very expensive, extensive and complicated litigation.
In Universal Gym Equipment, Inc. v Vic Tanny International, Inc. a member of the defendant’s Vic Tanny’s gym was injured on a Universal piece of equipment. The membership agreement she signed with Vic Tanny included a release which precluded her from suing Vic Tanny. She sued and eventually settled with Universal for $225,000.
Universal then sued stating Vic Tanny had an obligation and failed “to maintain safe premises and had an obligation to indemnify against or to contribute toward any settlement between” Universal and the injured gym member. The first claim failure to maintain a safe premise would be Universals claim that Vic Tanny was responsible for the injuries that Universal wrote a $225,000 check for. Universal claimed that Vic Tanny was negligent and grossly negligent on this issue. The claim that they needed to indemnify or contribute would then be derivative of the safe premises claim.
Vic Tanny won a motion for summary judgment because they claimed because they could not be liable to the original injured member because of the release; they could not be liable to Universal in this suit. However, the appellate court did not see things the same way the trial court had and reversed the trial court.
Here is where this case takes on new directions in an attempt to recover money and in at least one case, destroy any future defenses the parties may have. Universal argues in the case that the release signed by the injured member, who is now being used by Vic Tanny as a defense against Universal in this case, was not effective against a claim of gross negligence.
Eventually, this argument has got to come back and haunt Universal when they are faced with the next lawsuit where they may have a release to protect them. The court agreed with them, which now ads Michigan to the list of states where a release is not a bar to a gross negligence claim. Now, Michigan plaintiffs can simply allege gross negligence in a suit and take a case to trial.
The court ruled that Universal could not recover from Vic Tanny on its contribution claim because of a Michigan statute that prohibited it. However, the court reviewed the case law from other states and decided that those courts would have held Vic Tanny liable. Sommer v Federal Signal Corp, 79 N.Y.2d 540, 554; 583 N.Y.S.2d 957; 593 N.E.2d 1365 (1992)
As we editorialized in Do Health Clubs have a Duty to protect the Manufacturer’s of Health Club Equipment? A health club release that would have included the manufactures, as a protected party, would have probably been protected would have prevented this litigation.
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Universal Gym Equipment, Inc. v Vic Tanny International, Inc., 207 Mich. App. 364; 526 N.W.2d 5; 1994 Mich. App. LEXIS 443
Posted: January 24, 2011 Filed under: Health Club, Legal Case, Michigan, Release (pre-injury contract not to sue) | Tags: Excercise Equipment, Excercise Machine, Exculpatory Agreement, Gym, Health club, Release Leave a commentUniversal Gym Equipment, Inc. v Vic Tanny International, Inc., 207 Mich. App. 364; 526 N.W.2d 5; 1994 Mich. App. LEXIS 443
Universal Gym Equipment, Inc., Plaintiff-Appellant, v Vic Tanny International, Inc., and Vic Tanny of Greater Michigan, inc., Defendants-Appellees.
No. 157313
COURT OF APPEALS OF MICHIGAN
207 Mich. App. 364; 526 N.W.2d 5; 1994 Mich. App. LEXIS 443
May 18, 1994, Submitted
November 7, 1994, Decided
SUBSEQUENT HISTORY: [***1] Opinion On Rehearing April 3, 1995, Reported at: 1995 Mich. App. LEXIS 146.
DISPOSITION: Affirmed in part, reversed in part, and remanded.
COUNSEL: Barbier & Barbier, P.C. (by Ralph W. Barbier, Jr.), for the plaintiff.
Petersmarck, Callahan, Bauer & Maxwell, P.C. (by Richard W. West), for the defendants.
JUDGES: Before: Michael J. Kelly, P.J., and Corrigan and C.D. Corwin, * JJ.
* Circuit judge, sitting on the Court of Appeals by assignment.
OPINION BY: MICHAEL J. KELLY
OPINION
[*366] [**6] MICHAEL J. KELLY, P.J.
Plaintiff appeals as of right a circuit court order granting defendants’ motion for summary disposition under MCR 2.116(C)(7) and (8) and dismissing plaintiff’s complaint for contribution and indemnification following settlement of an underlying suit against plaintiff by a third party. We affirm in part, reverse in part, and remand.
I
On March 13, 1990, Catherine Ostroski filed suit against plaintiff Universal Gym Equipment, Inc., after she was injured at a Vic Tanny health club while using an exercise machine manufactured by Universal. Ostroski alleged that Universal was at fault. Because of a release [***2] provision in her health club membership contract, Ostroski did not name Vic Tanny as a defendant. However, Vic Tanny was aware of the proceedings and was requested to participate in settlement negotiations. On November 4, 1991, Ostroski reached a settlement agreement with Universal for $ 225,000.
On July 1, 1991, Universal initiated separate proceedings in a complaint against Vic Tanny alleging that Vic Tanny was liable for failure to maintain safe premises and had an obligation to indemnify against or to contribute toward any settlement between Universal and Ostroski. Universal filed an amended complaint after settlement with Ostroski. On July 6, 1992, Vic Tanny filed a motion for summary disposition, which the circuit court granted on September 15, 1992, on the basis that Vic Tanny could not be liable for contribution [*367] or indemnification where it had a valid defense under the release provision.
II
Universal first argues that the circuit court erred in granting summary disposition of its contribution claim because the release provision in Ostroski’s membership contract was unenforceable as against public policy. Alternatively, Universal contends that any defense provided [***3] by the release clause in an action between Vic Tanny and Ostroski was insufficient to bar recovery by Universal in a separate action for contribution against Vic Tanny.
A
With respect to thefirst argument, Universal now concedes that the release clause is enforceable in cases of ordinary negligence in light of this Court’s recent decision in Skotak v Vic Tanny Int’l, Inc, [**7] 203 Mich. App. 616; 513 N.W.2d 428 (1994). There, the Court upheld the validity of an identical clause, recognizing that [HN1] “[i]t is not contrary to this state’s public policy for a party to contract against liability for damages caused by its own ordinary negligence.” Id. at 617-618. The Court also found that the release provision “clearly expresses [Vic Tanny’s] intention to disclaim liability for all negligence, including its own.” Id. at 619.
The Skotak Court did not address the enforceability of the release clause with respect to a claim of gross negligence. Universal argues that a preinjury release provision absolving a party from liability for grossly negligent conduct [***4] violates Michigan public policy. We agree. See Klann v Hess Cartage Co, 50 Mich. App. 703, 706; 214 N.W.2d 63 [*368] (1973); Island Creek Coal Co v Lake Shore, Inc, 692 F. Supp. 629, 633(WD Va, 1988) (applying Michigan law). See also Sommer v Federal Signal Corp, 79 N.Y.2d 540, 554; 583 N.Y.S.2d 957; 593 N.E.2d 1365 (1992). Universal claims that Vic Tanny was grossly negligent in failing to maintain the exercise equipment and to train its employees and members regarding proper use of the equipment. Although Universal’s original complaint did not sound in gross negligence, it filed a motion for a second amended complaint that did include allegations of gross negligence. The trial court denied the motion, but Vic Tanny’s response to the motion and the order denying the motion are missing from the record. Because motions to amend a complaint are accorded great liberality, see MCR 2.118, and because the grounds for the trial court’s denial of the motion in this case remain a mystery, we reverse the order of denial and remand for a new hearing on the motion to file a second amended [***5] complaint. If the trial court grants the motion it shall allow further proceedings on the claim of gross negligence. If it denies the motion it shall specify the reasons and grounds for the denial.
B
The issue still remaining is whether Vic Tanny may invoke the release provision as a defense against Universal’s contribution claim if its conduct amounted to ordinary negligence.
Because this is an issue of first impression in Michigan, plaintiff relies in part on the opinion of the New York Court of Appeals in Sommer, supra, which found a similar release clause wholly unenforceable against a third-party contribution claimant. We consider the analysis in Sommer inapposite [*369] because we are constrained by the Michigan contribution statute, MCL 600.2925a et seq.; MSA 27A.2925(1) et seq., to reach a different result.
The Sommer court addressed the enforceability of an exculpatory clause in a contract between a fire alarm monitoring service and its customer in a contribution action against the monitoring service by third parties. Although the Court found the release clause violative of public policy only in cases of [***6] gross negligence, it went on to hold that the provision did not provide a defense to the contribution claim even in cases of ordinary negligence:
In contribution cases, we have drawn a distinction between the absence of liability to an injured party, and the absence of a duty. Often, the absence of direct liability to plaintiff is merely the result of a special defense, such as the Statute of Limitations or the exclusivity of workers’ compensation, and not because defendant was free of fault. In such cases, we have held that codefendants may seek contribution from the joint wrongdoer, despite the wrongdoer’s own defense to plaintiff’s claim. This principle is fully in accord with the rationale of Dole [v Dow, 30 N.Y.2d 143; 331 N.Y.S.2d 382; 282 N.E.2d 288 (1972)], which promotes equitable distribution of the loss in proportion to actual fault. [79 N.Y.2d at 558 (Citations omitted; emphasis in original.]
See also Moyses v Spartan Asphalt Paving Co, 383 Mich. 314; 174 N.W.2d 797 (1970); Caldwell v Fox, 394 Mich. 401, 419-420; 231 N.W.2d 46 (1975) [***7] (noting that Moyses “returned the doctrine of contribution among non-intentional wrongdoers to the original equitable rules”).
[**8] The Sommer court further explained that the defendant’s exculpatory provision in that case was “akin to a special defense that does not affect the [*370] codefendants’ ability to obtain contribution.” 79 N.Y.2d 558.
. . . Although [the defendant’s] direct liability to [the plaintiff in the underlying action] (by virtue of the exculpatory clause) is triggered only upon gross negligence, its duty is to avoid ordinary negligence. Upon breach of that duty, fairness requires that [the defendant] contribute to the judgment in proportion to its culpability. [Id. (Emphasis in original.)]
Perhaps most persuasive was the court’s observation that “it would be patently unfair to abrogate the [codefendants’] right to contribution based on an exculpatory clause to which they were not a party.” Id. In this case, Universal was not a party to the membership agreement between Vic Tanny and Ostroski. By asserting the release provision as a defense to the contribution claim, Vic Tanny is able to shift all claims [***8] to Universal without its prior knowledge or consent. 1
1 The effect on Vic Tanny’s insurability for such risks is not before us, but certainly an underwriter would weigh these risks in estimating premiums.
Nonetheless, Vic Tanny contends that the language of the contribution statute, enacted after Moyses, supra, dictates a different result from that which we would reach under the rationale of Sommer. Reluctantly, we agree.
[HN2] MCL 600.2925a; MSA 27A.2925(1) provides in pertinent part:
(3) A tort-feasor who enters into a settlement agreement with a claimant is not entitled to recover contribution from another tort-feasor if any of the following circumstances exist:
(a) The liability of the contributee for the injury or wrongful death is not extinguished by the settlement.
[*371] (b) A reasonable effort was not made to notify the contributee of the pendency of [***9] the settlement negotiations.
(c) The contributee was not given a reasonable opportunity to participate in the settlement negotiations.
(d) The settlement was not made in good faith.
(4) In an action to recover contribution commenced by a tort-feasor who has entered into a settlement, the defendant may assert the defenses set forth in subsection (3) and any other defense he may have to his alleged liability for such injury or wrongful death. [Emphasis added.]
Vic Tanny contends that the release provision qualifies as “any other defense,” thereby exonerating it from liability for contribution. We agree that the plain language of the statute cannot be read any other way. The reference to a defendant’s “alleged liability for such injury or wrongful death” clearly refers to liability to the injured party. The statute allows the defendant to apply “any” defense available against such liability to the contribution claim. [HN3] Where the language of a statute is clear, the Legislature must have intended the meaning plainly expressed, and the statute must be enforced as written. Gebhardt v O’Rourke, 444 Mich. 535, 541-542; [***10] 510 N.W.2d 900 (1994). In this case, the release clause effectively provides Vic Tanny with a defense against liability to Ostroski if its conduct constituted ordinary negligence.
Accordingly, while we remand for further proceedings, we conclude that Vic Tanny may be liable for contribution only for gross negligence.
III
Universal also argues that summary disposition [*372] was improper with respect to its indemnification claim. We disagree.
In Williams v Litton Systems, Inc, 433 Mich 755, 760;449 N.W.2d 669 (1989), the Supreme Court held that [HN4] an action for indemnification can be maintained only on the basis of an express contract or, in the case of common-law or implied contractual indemnification, by a party who is free from negligence or fault. In addition, where the complaint in the underlying action does not contain allegations of derivative or vicarious liability, a claim of implied indemnification is precluded. Employers Mutual Casualty [**9] Co v Petroleum Equipment, Inc, 190 Mich. App. 57, 65-66; [***11] 475 N.W.2d 418 (1991); Hadley v Trio Tool Co, 143 Mich. App. 319, 331; 372 N.W.2d 537 (1985).
Universal’s indemnification claim is not based on an express contractual agreement. Further, Ostroski’s complaint in the underlying action alleged active negligence on the part of Universal. Universal argues that, if the matter had proceeded to trial, the evidence would have shown that Vic Tanny improperly maintained its facilities and failed to apply a warning sticker. [HN5] Where, as here, there are no allegations of vicarious liability and the partyseeking indemnification disputes its own active negligence, it must do so against the plaintiff in the underlying action. See Gruett v Total Petroleum, Inc, 182 Mich. App. 301, 307; 451 N.W.2d 608 (1990), rev’d on other grounds 437 Mich. 876, 463 N.W.2d 711 (1990). Accordingly, the circuit court properly granted Vic Tanny’s motion for summary disposition of the indemnification claim.
Affirmed in part, reversed in part, and remanded for proceedings consistent with [***12] this opinion. We do not retain jurisdiction if the motion to file a second amended complaint is granted. We do retain jurisdiction if it is denied.
/s/ Michael J. Kelly
/s/ Maura D. Corrigan
/s/ Charles D. Corwin
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