Diodato, etc., v. Islamorada Asset Management, Inc., etc., et al., 2014 Fla. App. LEXIS 6254

Diodato, etc., v. Islamorada Asset Management, Inc., etc., et al., 2014 Fla. App. LEXIS 6254

Dominic James Diodato, etc., Appellant, vs. Islamorada Asset Management, Inc., etc., et al., Appellees.

Nos. 3D12-3393 & 3D12-2276


2014 Fla. App. LEXIS 6254

April 30, 2014, Opinion Filed




Appeals from the Circuit Court for Monroe County, Lower Tribunal No. 11-552-P. Luis M. Garcia, Judge.

COUNSEL: Thomas A. Culmo; Elizabeth K. Russo, for appellant.

Steven G. Schwartz and Mark A. Hruska, for appellees.





Dominic Diodato, as personal representative of the estate of his late wife, Aviva Diodato, appeals a final summary judgment in favor of the defendants/appellees, owners and participants in a recreational scuba diving operation known as “Key Dives” in Monroe County, Florida. Mrs. Diodato drowned on April 15, 2010, returning to a dive boat off Islamorada. This occurred at the very beginning of what was to have been an advanced open water dive to the wreck of the Eagle.

The final summary judgment in favor of the defendants was based on printed releases1 signed by Mr. and Mrs. Diodato during a prior visit to the Keys in 2009 and again for a shallow reef dive the day before the tragedy. The trial court rejected Mr. Diodato’s argument and evidence that the dive operators had failed to follow their own standard practice of procuring a different form of release for the more advanced dive and the boat trip to be undertaken on the day [*2] of the tragedy.

1 Though captioned and referred to as “releases,” the provisions at issue here are actually pre-claim exculpatory clauses.

Applying well-settled Florida law disfavoring and narrowly construing exculpatory clauses, we reverse and remand for further proceedings. The scope and duration of the “activity” to which the signed exculpatory provisions applied is a genuine issue of material fact that precludes summary judgment.


The trial court’s order recounts the primary elements of Mrs. Diodato’s tragic accidental drowning:

It was the practice of Key Dives to require their customers to sign a release immediately prior to a day’s dive. Each of the Diodatos signed a release in favor of Key Dives, and those connected with Key Dives, on August 29, 2009.2 On the reverse side of the releases, they initialed boxes stating, “[t]his release is valid for one year from the date of this release.” On April 14, 2010, again before a dive, the Diodatos signed other releases; this time they did not initial the box providing for the one-year operative period. They dove that day. On the morning of the April 15, 2010, dive, the dive fatal to Aviva, the Diodatos were late in arriving, and did not [*3] sign a release. This final dive was to be a wreck dive to a ship called the Eagle. It was to be an advanced open water dive, a dive for which, according to the Plaintiff, dive industry standards dictated a particular form of release must be used.

On the morning of the dive, Aviva Diodato showed apprehension about diving. Though the reason for her apprehension will never be known, ocean swells were estimated to be between four and five feet. Dive instructor, now defendant, Leslie Peaker, and Dominic Diodato entered the water first. Aviva followed, but, after only submerging to a depth of approximately ten feet, she signaled to Peaker that she wanted to surface. She surfaced with Peaker accompanying her. He did not help her on board. Aviva reached for and held on to the boat’s granny line, but lost her hold and drifted away from the boat. The boat’s captain, and now defendant, Scott Alan Lorenc[e], sounded an alarm. After a brief search, she was found floating, but drowned.

2 The actual date on these releases was August 25, 2009.

There are additional facts in the record, including the specific language of the three forms of printed release (August 25, 2009; April 14, 2010; and the form Key [*4] Dives intended to obtain before the wreck dive on April 15, 2010), that affect the analysis. The Diodatos were residents of Arizona and obtained their initial PADI certification3 there. Their scuba training and four open water certification dives were in an Arizona lake in August 2009, a few days before their first reef dives in the Florida Keys.

3 PADI is the acronym for the Professional Association of Dive Instructors.

The August 25, 2009, release was signed by Mrs. Diodato in connection with a series of six open water dives over a period of four days:


Please read carefully, fill in all blanks and initial each paragraph before signing.


[Initials] I understand and agree that neither Islamorada Asset Mgmt., Inc. dba KEY DIVES; nor the dive supervision staff; nor International PADI, Inc., nor any of their respective employees, officers, agents or assigns (hereinafter referred to as “Released Parties”), may be held liable or responsible in any way for any injury, death [*5] or other damages to me or my family, heirs, or assigns that may occur as a result of my participation in this activity, or as a result of product liability or the negligence of any party, including the Released Parties, whether passive or active.

[Initials] I understand that diving with compressed air involves certain inherent risks, including but not limited to, air expansion injuries, decompression sickness, embolism and drowning. Hyperbaric injuries can occur that require treatment in a recompression chamber. I further understand that this activity may be conducted at a site that is remote, either by time or distance or both, from such a recompression chamber. I still choose to proceed with such activity in spite of the possible absence of a recompression chamber in proximity to the dive site.

[Initials] I declare that I am in good mental and physical fitness for diving, and that I am not under the influence of alcohol, nor am I under the influence of any drugs that are contra-indicatory to diving. If I am taking medication, I declare that I have seen a physician and have approval to dive while under the influence of the medication/drugs.

[Initials] I understand that skin and scuba [*6] diving are physically strenuous activities and that I will be exerting myself during this activity and that if I am injured as a result of heart attack, panic, hyperventilation, etc., that I assume the risk of said injuries and that I will not hold the Released Parties responsible for the same.

[Initials] I will inspect all of my equipment prior to the activity. I will not hold the Released Parties responsible for my failure to inspect my equipment prior to diving.

[Initials] In consideration of being allowed to participate in this activity, I hereby personally assume all risks in connection with the dive(s) for any harm, injury or damage that may befall me while I am a participant, including all risks connected therewith, whether foreseen or unforeseen.

[Initials] I further save and hold harmless said activity and Released Parties from any claim or lawsuit for personal injury, property damage, or wrongful death, by me, my family, estate, heirs, or assigns, arising out of my participation in this activity, including both claims arising during the activity or after I complete the activity.

[Initials] I further declare that I am of lawful age and legally competent to sign this liability [*7] release, or that I have acquired the written consent of my parent or guardian.

[Initials] I understand that the terms herein are contractual and not a mere recital, that this instrument is a legally binding document, and that I have signed this document of my own free act.



(Aviva Diodato signature)

Signature of Participant



As already noted, Mrs. Diodato also initialed a provision on the reverse side of the form which stated: “This release is valid for one (1) year from the date of this release.” Although the record on this point is not explicit, it appears that [*8] the “activity,” referred to ten times in the body of the release, contemplated and paid for by the Diodatos in August 2009, was a series of six open water reef dives (maximum depths ranging from twenty to thirty-five feet) over four days, August 25-28, 2009. There is no summary judgment evidence indicating that, at the time the Diodatos signed the 2009 form, they contemplated (much less made payment for) the 2010 advanced open water dive.

Following the August 2009 dives, Mrs. Diodato’s dive manual next recorded three more lake dives in Arizona. On April 14, 2010, the Diodatos returned to Key Dives and Islamorada for additional dives. The April 14, 2010 release signed by Mrs. Diodato was the same printed form as she had signed on August 25, 2009, but this time she did not sign or initial the “valid for one year” provision on the back of the form. According to the instructor, the dive in question was a recreational “shallow reef” dive to prepare them to participate in an advanced open water, much deeper dive the following day.

For the April 15, 2010, wreck dive, Key Dives procedures required a different form of release. The caption of the form included “boat travel,” and the scope of the [*9] release referred to an “Excursion” (consisting of “scuba diving including those hazards occurring during boat travel to and from the dive site”) rather than an “activity.” The April 15 form included specific reference to additional hazards that were not a part of the August 25, 2009, or April 14, 2010, releases: “slipping or falling while on board, being cut or struck by a boat while in the water; injuries occurring while getting on or off a boat, and other perils of the sea; all of which can result in serious injury or death.” The form also included spaces to indicate whether the passenger/diver had diver accident insurance and, if so, the policy number.

The parties are on common ground that the Diodatos’ instructor for the April 15 advanced open water dive intended to have the Diodatos sign the “Excursion” form of release, but did not do so because they were twenty minutes late arriving at the dock. The instructor testified that two other participants in the dive were waiting on the boat, and “It takes about half an hour to go through the knowledge review, plus the paperwork.” He intended to have the Diodatos sign the papers “when we got back.” And in contrast to the “recreational” [*10] reef dive the preceding day, the April 15 wreck dive was characterized by the instructor as a “deep dive.” The instructor testified at his deposition that “There is no reference, except for the [descent] line. Sometimes people get a little bit unnerved by that, and that is what I felt happened to [Mrs. Diodato].”

The trial court granted the defendants’ motion for final summary judgment based on the language of the August 25, 2009, release (including the “valid for one year” provision on the back of the form) and the April 14, 2010, release. These appeals4 followed.

4 Mr. Diodato appealed the order granting the defendants’ motion for final summary judgment, Case No. 3D12-2276, and later the final judgment itself, which included a provision taxing costs, Case No. 3D12-3393. The appeals were consolidated for all purposes.


[HN1] Under Florida Rule of Civil Procedure 1.510(c) and Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000), the appellees were entitled to summary judgment only if the pleadings, affidavits, depositions, discovery responses, and other evidence in the record establish that there is no genuine issue of material fact, such that the appellees [*11] were entitled to such a judgment as a matter of law. Our review is de novo.

We review the exculpatory provisions in the August 25, 2009, and April 14, 2010, releases under the well-settled principle that such clauses are disfavored and are narrowly construed:

[HN2] Exculpatory clauses are disfavored and are enforceable only where and to the extent that the intention to be relieved from liability was made clear and unequivocal and the wording must be so clear and understandable that an ordinary and knowledgeable person will know what he is contracting away. Gayon v. Bally’s Total Fitness Corp., 802 So. 2d 420 (Fla. 3d DCA 2001); Raveson v. Walt Disney World Co., 793 So. 2d 1171 (Fla. 5th DCA 2001).

Cain v. Banka, 932 So. 2d 575, 578 (Fla. 5th DCA 2006).

In the case at hand, another aspect of contract interpretation comes into play as well. [HN3] A release containing exculpatory language is part of a commercial transaction having a discernible scope and term. “Scope” would reasonably address the hazardous activity which the releasor has paid the releasee to allow him or her to undertake, and which the releasee insists must be at the releasor’s own risk if the activity is to proceed. “Term” would reasonably [*12] address the anticipated duration of the hazardous activity for which the release has been required and obtained. The scope and term of one hazardous activity may naturally vary significantly in the level of risk assumed by the releasor when compared to another hazardous activity.

A pre-printed release signed for an introductory scuba certification class in shallow water would ordinarily have a different scope, level of risk, and cost than a deep water cave dive or offshore wreck dive, for example. The pre-activity “knowledge review” described in the instructor’s testimony in this case was plainly calculated to communicate the risk of an advanced activity to the participant about to be asked to initial and sign a form of release. The textual question is whether a particular exculpation clause extends to any and all scuba dives, irrespective of risk and skill level, or whether that clause is limited to the instruction and activity for which payment has been made and risks disclosed.

Examining the two releases signed by Mrs. Diodato in this case (and reprinted in full above), it is apparent that each refers to an “activity” ten times:

…any injury, death, or other damages to me…that may [*13] occur as a result of my participation in this activity, or as a result of product liability or the negligence of any party…

I further understand that this activity may be conducted at a site that is remote… I still choose to proceed with such activity in spite of the possible absence of a recompression chamber in proximity to the dive site.

I understand that skin and scuba diving are physically strenuous activities and that I will be exerting myself during this activity…

I will inspect all of my equipment prior to the activity…

In consideration of my being allowed to participate in this activity, I hereby personally assume all risks in connection with the dive(s) for any harm, injury or damage that may befall me while I am a participant….

I further save and hold harmless said activity and Released Parties from any claim or lawsuit … arising out of my participation in this activity, including both claims arising during the activity or after I complete the activity.

“Activity” [*14] is not defined in the releases signed by Mrs. Diodato, but the record does demonstrate that the August 25, 2009, release was signed in connection with six open water reef dives over the course of four days.5 Similarly, the April 14, 2010, release involved a “shallow reef” or “regular” dive led by an instructor to prepare for the following day’s deep water wreck dive.

5 This explains the logic or necessity for checking the “valid for one year” clause on the back of the form. That provision eliminated the necessity for signing a separate form for each of the six open water dives. It does not necessarily follow that it applied to any then-uncontracted-for, higher-risk, separately-purchased deep water dives ten months later. By inference (and inferences must be indulged in favor of the non-movant), this is why Key Dives required a new release on April 14, 2010, on the return visit within the one-year period, instead of relying on the “valid for one year” provision in the August 2009 release.

The April 15 dive was to be a qualifying dive for the higher-level “advanced open water” PADI certification. Thus the “activity” that is the subject of the April 14 release is different from the definition [*15] of “Excursion” in the form of release that Key Dives procedure specified was to be executed by the Diodatos before the April 15 boat trip and offshore “deep dive.” The “Excursion” form also would have permitted the parties to state in writing whether “diver accident insurance” had been purchased.

Recognizing these differences in the signed and unsigned forms of release at issue here, we turn next to the case law relied upon by the parties. At the outset, we are unpersuaded by the “abandonment by conduct” case law advanced by Mr. Diodato. Cases such as Painter v. Painter, 823 So. 2d 268 (Fla. 2d DCA 2002), and Klosters Rederi A/S v. Arison Shipping Co., 280 So. 2d 678 (Fla. 1973), hold that a party may waive or abandon contract rights by taking action inconsistent with those rights,6 but in the case at hand there is no indication that Key Dives waived or abandoned the signed releases to the extent of the “activity” encompassed by each. Had the April 15, 2010, dive been a continuation of the basic open water instruction contracted for by the Diodatos in 2009 (and thus a part of the “activity” knowingly contracted for by the parties at that time), the scope and term (because of the one-year [*16] clause) of the 2009 release would apply. Had the April 15, 2010, advanced open water dive involved the same “activity” and level of risk inherent in the “regular” and “shallow reef” dive of April 14, 2010, the scope and term of that release would apply.

6 In those cases, the party entitled to enforce a contractual provision unequivocally revoked or waived its right to enforce the provision. In the present case, the appellees never suggested by word or deed that the signed releases had expired or been superseded. The question is whether those releases applied to every aspect of the Diodatos’ different “activity” on April 15th.

Instead, the defendants’ April 15 form recognized a different activity and level of risk, expressly defining this activity as an “Excursion” and including within it the hazards of scuba diving as well as “injuries occurring while getting on or off a boat, and other perils of the sea,”7 a category of harm not addressed in the signed releases. And because the defendants’ prescribed form was not presented or signed, we will never know whether Mrs. Diodato might have inquired about diver accident insurance, or obtained it, as contemplated by the separate PADI form.

7 We [*17] must respectfully disagree with the conclusion in the order granting summary judgment that the form intended by the defendants to be obtained (but not obtained) for the April 15, 2010, boat travel and dive involves only “a distinction without a substantial difference” when compared to the earlier, signed releases. It is certainly a factual issue, and for a jury to consider, whether Mrs. Diodato’s drowning actually occurred as a result of scuba diving alone, or from “getting on or off a boat, and other perils of the sea” (in this case, significantly-higher waves and current).

We conclude that the analysis in this case turns on: the ambiguity in the term “activity” as used (in the singular) to cabin the scope of the signed releases; the appellees’ concession that a more extensive definition was necessary for the April 15 boat trip and dive; and the settled Florida law that such [HN4] pre-claim exculpatory clauses “are disfavored and thus enforceable only to the extent that the intention to be relieved from liability is made clear and unequivocal.” Hackett v. Grand Seas Resort Owner’s Ass’n, Inc., 93 So. 3d 378, 380 (Fla. 5th DCA 2012) (reversing summary judgment because the “level of ambiguity” [*18] in an exculpatory clause was simply “too great to permit enforcement”).

The trial court’s order granting final summary judgment cited Paralift, Inc. v. Superior Court, 23 Cal. App. 4th 748, 29 Cal. Rptr. 2d 177 (Cal. Ct. App. 1993). In that case, the decedent had signed a skydiving release approximately three years before a tragic accident in which he fell to his death in the Pacific Ocean. The decedent’s estate and daughter argued that the release made no reference to jumps involving heightened risk “over large bodies of water or in particular weather conditions.” The California Court of Appeal found the release to be enforceable. The exculpatory provisions in that case, however, involved “parachuting activities” (plural in each reference) without limitation, and the record demonstrated that the decedent was “a highly qualified and licensed skydiver who had made over 900 skydives prior to the fatal jump which gave rise to this action.” The record also showed he had jumped over the same area (near the coastline) a year before the fatal jump. There was no testimony or documentary evidence to suggest that the releasee in Paralift required different forms for different types of jumps involving different levels [*19] of certification and risk.

Finally, it is apparent that the signed 2009 and 2010 releases in the present case could be slightly modified to be “clear and unequivocal,” using words “so clear and understandable that an ordinary and knowledgeable person will know what he is contracting away,” Cain, 932 So. 2d at 578, by expanding the scope from the “activity” at the time the release is executed to include, for example, any and all future courses of instruction, programs, scuba dives, certification levels, and dive-related boat travel, undertaken by the releasor.


Floridians and visitors to our State are generally free to engage in hazardous recreations such as jet-skiing, para-sailing, skydiving, scuba diving, rodeo competitions, and auto races (to name a few), and to assume contractually all risks associated with those recreations before engaging in them. It remains the case, however, that we disfavor and narrowly construe such pre-claim exculpatory terms. Applying that rule of construction to the record in this case, and under the rigorous standards applicable to our de novo review of a summary judgment, we are constrained to reverse the final summary judgment and the judgment [*20] for costs.

Reversed and remanded for further proceedings.


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Walton v. Oz Bicycle Club Of Wichita, 1991 U.S. Dist. LEXIS 17655 (Dist Kan 1991)

Walton v. Oz Bicycle Club Of Wichita, 1991 U.S. Dist. LEXIS 17655 (Dist Kan 1991)

Eric Walton, Plaintiff, vs. Oz Bicycle Club Of Wichita, Defendant.

No. 90-1597-K

United States District Court For The District Of Kansas

1991 U.S. Dist. LEXIS 17655

November 21, 1991, Decided

November 22, 1991, Filed

COUNSEL: PLAINTIFF COUNSEL: David P. Calvert, Focht, Hughey, Hund & Calvert, 807 North Waco, Suite 300, Wichita, KS 67203

DEFENSE COUNSEL: Don D. Gribble, II, Donald N. Peterson, II, Kahrs, Nelson, Fanning, Hite & Kellogg, 200 West Douglas, Suite 630, Wichita, KS 67202



OPINION: Nearing the end of the sixth lap of the seven-lap bicycle race held in Hutchinson, Kansas on August 12, 1989, Eric Walton began to pull into the lead. Closely pursued by two other racers, Walton approached the intersection of Crazy Horse and Snokomo Streets. The course of the race required the racers traveling east on Crazy Horse to make a left turn at the intersection onto Snokomo.


Leaning into the turn at about 30 miles per hour, Walton cut the northwest corner of the intersection about two feet from the curb. Flying past the corner, Walton was able to see for the first time the car stopped at the stop sign at the intersection and which had been hidden by the crowd of spectators lining Crazy Horse. Walton turned to the right to avoid the car. His bike went off the roadway, striking the open door of the van owned by the race’s referee, Gaylen Medders. As a result of this accident, Walton sustained injuries which have formed the basis for the present action.

The defendant, Oz Bicycle Club of Wichita, Kansas, has moved for summary judgment on the claims advanced by Walton. Oz presents three arguments in support of its motion: (1) that the release signed by Walton bars the present action; (2) that Walton assumed the risk of the injuries received; and (3) that Oz assumed no duty of due care towards Walton.

[HN1] Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). [HN2] In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). [HN3] The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff’s claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).

[HN4] In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. “In the language of the Rule, the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). [HN5] One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Walton was an employee of the Continental Cyclery Company in Hutchinson, Kansas, and participated in the race as a member of the Continental Cyclery team. An experienced racer, Walton had participated in 20 to 30 prior races, and had experienced two prior accidents while racing.

The August 12 race in Hutchinson was sponsored by Continental Cyclery, as well as a local pizzeria and mortuary. The race was conducted under the auspices of defendant Oz Bicycle Club of Wichita, which conducts periodic bicycle races as a part of its “Toto Racing Series.” For the August 12 race, local sponsors arranged for standby emergency medical and law enforcement services, planned the course of the race, and arranged for corner marshals along the route. Medders, the chairman of Oz, took participant applications, and served as the official and timer of the race.

Entrants in the race paid an $ 8.00 fee to Oz. In addition, entrants were required to sign a release. This release provides in part:


In consideration of the acceptance of my application for entry in the above event, I hereby freely agree to and make the following contractural [sic] representations and agreements.

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 limitation, the following: the dangers of collision with pedestrians, vehicles, other racers, and fixed or moving objects; the 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 accrue to me against the sponsors of this event, the Oz Bicycle Club, the promoter and any promoting organization(s), property owners, law enforcement agencies, all public entities, special districts, and properties (and their respective agents, officials, and employees) 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.

Similar releases were contained in the registration forms for each of the 20 to 30 prior races in which Walton had participated. Walton was given an opportunity to read the release. Having read similar forms on prior occasions, Walton did not read this release. Walton was aware of what was in the release and understood its terms.

Walton’s participation in the race was not required. However, Walton voluntarily wished to enter the race and knew that signing the release was a requirement for participation. Walton recognized the dangers of participating in a bike race. Walton signed the release.

Prior to the start of the race, Medders had warned the participants that the course of the race was not closed to traffic, and during the course of the race Walton had encountered other cars on the course. However, as he cut the corner at the end of the sixth lap, Walton had not thought of the possibility of a car, hidden by the crowd, laying in his path on the other side of the intersection.

The status of the doctrine of assumption of risk is not clear under present Kansas law. In Shufelberger v. Worden, 189 Kan. 379, 385, 369 P.2d 382 (1962), the court indicated that the doctrine of assumption of risk was generally limited to situations involving an “employment relationship or [a] contractual relationship, express or implied.” By a process of slow osmosis, the Kansas Supreme Court has held most recently that the doctrine of assumption of risk is “limited to cases such as this where a master-servant relationship is involved.” Borth v. Borth, 221 Kan. 494, 499, 561 P.2d 408 (1977). To what extent this evolution, reflected in Smith v. Blakey, 213 Kan. 91, 101, 515 P.2d 1062 (1973); Ballhorst v. Hahner-Forman-Cale, Inc., 207 Kan. 89, 484 P.2d 38 (1971); Perry v. Schmitt, 184 Kan. 758, 339 P.2d 36 (1959); George v. Beggs, 1 Kan.App.2d 356 Syl para. 1, 564 P.2d 593 (1977), is the result of an intentional, conscious modification of the law is uncertain. At no time have the state courts considered the impact of the adoption of comparative fault in relation to the continued validity of the doctrine of assumption of risk. But it is unnecessary to resolve the issue of assumption of risk here, since the court finds that the release signed by Walton is a valid exculpatory agreement which bars the present action.

In his brief in opposition to the motion for summary judgment, Walton presents several arguments in opposition to the application of the release agreement. Walton contends that the agreement reflects “overreaching” by the defendant, and cites the long list of persons protected by the agreement, including property owners in the area, law enforcement officers, and all public entities. This argument might be considered if the defendant were such a party, unconnected with either the race or the release agreement. Here, however, Oz is the bicycle club which helped to organize the race, took the applications of participants, and required the release agreements to be signed by those participants. In inserted, typed language, the agreement specifically lists “Oz Bicycle Club” as one of the parties protected by the release agreement.

Citing several Kansas cases, Walton contends that the law does not favor exculpatory agreements. This is certainly correct. But the cases cited by Walton merely establish that such agreements are disfavored and therefore are to be strictly construed. They do not establish that exculpatory agreements are inherently void as contrary to law. Mid-America Sprayers, Inc., v. United States Fire Ins. Co., 8 Kan.App.2d 451, 660 P.2d 1380 (1979).

It is correct, as Walton notes, that exculpatory agreements are void where they are contrary to established public interests. Hunter v. American Rentals, 189 Kan. 615, 371 P.2d 131 (1962); In re Estate of Shirk, 186 Kan. 311, 350 P.2d 1 (1960). Yet, despite this suggestion, Walton does not attempt to explain how bicycle racing affects important and established public interests.

The position advanced by Walton has been expressly rejected elsewhere. [HN6] Voluntary sporting competitions are not matters of important public interest, as that term is used in considering which matters may not be the subject of exculpatory agreements. “There is no compelling public interest in facilitating sponsorship and organization of the leisure activity of bicycle racing for public participation.” Okura v. United States Cycling Fed., 186 Cal.App.3d 1462, 231 Cal. Rptr. 429 (1986). See also Dobratz v. Thomson, 161 Wis.2d 502, 468 N.W.2d 654 (1991) (water skiing); Barnes v. Birmingham Intern. Raceway, Inc., 551 So.2d 929 (Ala. 1989) (automobile racing); Milligan v. Big Valley Corp., 754 P.2d 1063 (Wyo. 1988) (downhill skiing); Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704 (Wyo. 1987) (mock gunfight conducted by gun club); McAtee v. Newhall Land & Farming, 169 Cal.App.3d 1031, 216 Cal.Rptr. 465 (1985) (motorcross racing); Hulsey v. Elsinore Parachute Center, 168 Cal.App.3d 333, 214 Cal.Rptr. 194 (1985) (sky diving); Williams v. Cox Enternrises, Inc., 159 Ga.App. 333, 283 S.E.2d 367 (1981) (10,000 meter foot race). Even the fact that a participant considers the sport to be more than a “hobby” and hopes to someday participate at an Olympic level, will not raise the matter to a compelling public interest. Buchan v. U.S. Cycling Fed., 227 Cal. App.3d 134, 277 Cal. Rptr. 887 (1991).

Walton also argues that the danger herein — an automobile on the course of the race — was not a hazard normally associated with bicycle competitions, and cites the decision of the California Court of Appeals in Bennett v. United States Cycling Fed., 193 Cal.App.3d 1485, 239 Cal. Rptr. 55 (1987), in which the court found that an automobile’s presence on the course of the raceway was found to be a risk not normally associated with bicycle racing, and therefore not within the contemplation of an exculpatory agreement signed by the plaintiff. Unlike Bennett, where the bicycle race involved a “closed race” in which automobiles were not to be permitted on the raceway, the uncontradicted facts herein establish that the presence of automobiles on the course of the Toto race in Hutchinson was not unknown to the participants. Rather, the fact that the course was open to normal traffic was explicitly made known to the participants. Under the factual background of the case, there is no basis for the contention that the plaintiff could not or should not have anticipated the presence of automobiles on the raceway as a danger reflected in the release agreement.

[HN7] Although exculpatory agreements have an inherent potential for abuse and overreaching, and hence are subjected to close scrutiny by the courts, these agreements have a vital role to play in allowing the individual to participate in activities of his own choice. If the individual has entered into an exculpatory clause freely and knowingly, and the application of the clause violates no aspect of fundamental public policy, the individual’s free choice must be respected. Here, public policy supports, rather than detracts from, the application of the exculpatory clause. “Unless courts are willing to dismiss such actions without trial, many popular and lawful recreational activities are destined for extinction.” Buchan, 227 Cal.App.3d at 147.

IT IS ACCORDINGLY ORDERED this 21 day of November, 1991, that the defendant’s motion for summary judgment (Dkt. No. 35) is hereby granted.


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