Nevada Appellate court voids release because statements made between the riders & the mechanical bull operator creates a requirement to maneuver the bull in an easy fashion which voided the release. Plaintiff also claimed battery from the actions of the defendant.Posted: September 7, 2020 Filed under: Assumption of the Risk, Nevada, Release (pre-injury contract not to sue) | Tags: Ambiguity, assumption of the risk, Battery, broken, clarify, contractual, contradict, Conversation, convey, corners, Easy Ride, exact, exculpatory, extrinsic, free-fall, genuine, intensity, Mechanical bull, negotiation, Nevada, parol, Parol evidence rule, quotation, re-write, Release, ride, simulator, thrown, trier, unambiguous, undisputed, unexpected, verbal, violent, waived, Waiver Leave a comment
A strong and well written dissent argued to enforce the release on general contract principals.
Kuchta v. Opco, 2020 Nev. App. Unpub. LEXIS 549, 2020 WL 3868434
Nevada, Court of Appeals of Nevada
Plaintiff: Joseph Kuchta
Defendant: Sheltie Opco, LLC, a Nevada Limited Liability Company, d/b/a John Ascuaga’s Nugget, d/b/a Gilley’s Nightclub; and Wolfhound Holdings, LLC, a Delaware Limited Liability Company
Plaintiff Claims: Negligence, Negligence Per Se, Negligent Hiring and Respondent Superior, Negligent Supervision, Negligent Entrustment, and Battery
Defendant Defenses: Release
Holding: For the Plaintiff
Bar patrons wanted to ride the mechanical bull. Before doing so they made the bull operator agree to an easy ride. After one of the riders was thrown and suffered an injury, they sued saying the agreement between the operator and the riders for an easy ride voids the release. The Nevada Court of Appeals agreed.
While socializing with friends at Gilley’s Nightclub in Sparks, Nevada, a bar owned by respondent Sheltie Opco, Kuchta and his friends observed an employee riding a mechanical bull. As the employee was riding the bull, another employee used a joystick to control the bull’s movements. After the employee demonstrated how easy and non-challenging it was to engage safely in a slow ride, she stepped off the bull.
Sometime later that night, Kuchta and his friends were considering riding the bull. Kuchta’s group approached the same employee, who they had watched ride the bull earlier, and who was now operating the joystick and controlling the ride. Two different people within the group that Kuchta was part of conversed with the employee about riding the mechanical bull.
Viewing all factual allegations in a light most favorable to Kuchta, his friends told the employee that each person in their group wanted an easy ride, which based on a difficulty scale of one to ten, they described as a two (with one meaning not moving at all), which the employee said she could provide. The friends indicated that everyone in the group was a novice and wanted a ride similar to the ride the employee had demonstrated. Furthermore, they told the employee that everyone should be able to step off the bull once the ride concluded, just as the employee had been able to do earlier that night after her ride. The employee agreed to provide the type of a ride Kuchta’s group requested. Thus, Kuchta’s and the employee’s understandings and expectations regarding Kuchta’s ride were that it would be easy, at a level two or at a low speed, and that Kuchta would be able to dismount after the ride was finished.
Before any person could ride the mechanical bull, however, Gilley’s required each patron to sign a previously prepared Assumption of Risk, Release, Indemnity, and Medical Treatment Authorization Agreement (Agreement), also known as a written waiver. The Agreement listed potential risks and possible injuries involved in riding the bull, including broken bones, and also released Sheltie Opco from any and all liability for injuries or negligence that occur from all risks, both known and unknown. Kuchta signed the Agreement, although the record does not reveal when it was signed in relation to the conversations described above.
According to Kuchta, once on the bull, the ride was initially slow, as had been requested. However, after approximately 20 seconds, the operator significantly increased the speed and violence of the bull’s movements. Kuchta was thrown from the bull and suffered a fractured pelvis.
Kuchta sued Sheltie Opco alleging: negligence, negligence per se, negligent hiring and respondent superior, negligent supervision, negligent entrustment, and battery. Sheltie Opco moved for summary judgment on all claims, arguing there was no genuine issue of fact because Kuchta expressly assumed the risks of the ride and consented to the battery when he signed the Agreement before riding the bull. The district court granted Sheltie Opco’s motion for summary judgment finding that Kuchta expressly assumed the risks of riding the bull by signing the Agreement, including consenting to the touching that was the basis for his battery claim.
Analysis: making sense of the law based on these facts.
The basic issue that pops up in this case is the conversation between the operator of the mechanical bull and the plaintiff who set the conditions for the plaintiff to ride the bull. Normally, verbal agreements are void and only the paper agreements are valid when a contract is signed. This is called the Parol Evidence rule. Oral statements made prior to the signing of the written agreement are of no value in interpreting the contract. Only the information contained in the four corners of the paperwork are reviewed.
This is a scary issue because any statement made by your staff could be used to defeat a release.
Kuchta argues that he did not expressly assume the risk because the operator specifically agreed to provide the requested slow ride (i.e., an intensity of two out of ten) and the operator instead ultimately conducted a wild ride exceeding his expectations.
Does a conversation between a customer and an employee, (or staff member) change a release? More importantly, does it create a modification of the experience so that the release does not cover the risk. Normally no, but in this case, Yes.
The court then looked at the requirements for a valid release under Nevada’s law.
(1) Contracts providing for immunity for liability for negligence must be construed strictly since they are not favorite[s] of the law . . . (2) such contracts must spell out the intention of the party with the greatest particularity . . . and show the intent to release from liability beyond doubt by express stipulation and no inference from the words of general import can establish it . . . (3) such contracts must be construed with every intendment against the party who seeks immunity from liability . . . (4) the burden to establish immunity from liability is upon the party who asserts such immunity . . . .
Taken as a whole, the requirements are not different in most states. However, the Nevada Appellate court looked further at the requirements to determine whether the plaintiff did assume the risk. Where the risks identified in the release or known by the plaintiff.
However, our inquiry does not stop here as it pertains to the waiver’s validity; we must determine whether Kuchta expressly assumed the risks contemplated by the waiver.
In Nevada, releases are looked at as proof, the plaintiff assumed the risk. These are one-way courts look at releases; however, it is a minority view. The release must then contain the necessary language for the defendant to prove the plaintiff knew and assumed the risk that caused his or her injury.
The court has combined, under Nevada’s law, the relationship of contract, the release, and the risks outlined or assumed by contract in the release. Meaning, not only must you agree not to sue, the risks you assume must be specific in the release.
“Express assumption of risk[‘s] . . . vitality stems from a contractual undertaking that expressly relieves a putative defendant from any duty of care to the injured party; such a party has consented to bear the consequences of a voluntary exposure to a known risk.”
A release under Nevada’s law is an express assumption of risk agreement. Express meaning written.
Generally, “[a]ssumption of the risk is based on a theory of consent.” For a party to assume the risk there are two requirements. “First, there must have been voluntary exposure to the danger. Second, there must have been actual knowledge of the risk assumed.” Actual knowledge of the danger by the party alleged to have assumed the risk is the essence of the express assumption of risk doctrine.
The plaintiff in this case did not consent to the ride he was given, even though he signed away his right to sue. The failure of the defendant to prove the plaintiff assented to the ride he received, which was not in the written release, was cause for the release to fail, possibly.
To determine whether the party signing had actual knowledge of the risks assumed, courts must consider “[(1)] the nature and extent of the injuries, [(2)] the haste or lack thereof with which the release was obtained, and [(3)] the understandings and expectations of the parties at the time of signing.”
The first two requirements were met in this case. However, the third requirement was not met. The plaintiff did not have an understanding or expectations of the parties at the time the release was signed.
These conflicting allegations create a genuine dispute of material fact as to the expectations of the parties and as to whether the bull operator’s conduct failed to meet those expectations. Because Kuchta and Sheltie Opco each presented consistent and conflicting facts regarding both parties’ expectations of the ride, and knowledge of the risks involved in a level two-of-ten or easy ride, a trier of fact should have resolved this issue. Thus, the district court erred by granting summary judgment in favor of Sheltie Opco as to Kuchta’s negligence claims.
No party, who signs a release, expects to be injured or killed. So, this third requirement is different. No guest signs the release with an understanding they can’t sue. They sign the release because it is part of the paperwork needed to engage in the activity. If you made the effort to make sure the person signing the release understood the expectations of them from you when signing the release, many might not.
So, this decision in Nevada does not void releases. It does, however, create an additional requirement in the relationship between your guests and your operations. The risks the client is undertaking must be known and assumed by the plaintiff prior to undertaking the activity. That risk must be expressed in the release.
The second argument the plaintiff made that the court undertook was the battery claim. Most people understand the TV term assault and battery as a criminal charge. However, battery has been an intentional tort for centuries. “A battery is an intentional and offensive touching of a person who has not consented to the touching.”
In this case, the touching is not an actual contact between the plaintiff and the defendant but causing the plaintiff to be “touched” by the landing surface which caused his injury.
The court looked at this intentional tort as greater than normal negligence.
“[G]eneral clauses exempting the defendant from all liability for negligence will not be construed to include intentional or reckless misconduct, or extreme and unusual kinds of negligence, unless such intention clearly appears.”
This phrase is quite interesting. Like all other states, a release does not cover intentional, reckless, or extreme conduct on the part of the defendant. At the same time, the court seemed to open the idea that a release under Nevada’s law could stop a claim for intentional, reckless, or extreme conduct if it was intentional and clear in the release.
Because there was a conflict between the plaintiff and the defendant as to the facts surrounding the battery, the Appellate court found the motion for summary judgment should not have been granted.
The dissent in this case would have upheld the release based on basic contract law. The dissent sets out a thorough review of contract law in Nevada.
Summing up, what 500 years of contract law tell us is this:
(1) a contract means what its words say and an unambiguous contract “will be enforced as written”;
(2) what the contractual words say is what they objectively convey in their ordinary sense regardless of what the parties might have personally thought or intended in their heads;
(3) the final contract supersedes all earlier verbal negotiations;
(4) parol evidence may only be used to clarify a term that is ambiguous, and an ambiguity does not arise merely because the parties disagree on what they think the contract means;
(5) parol evidence may never be used to contradict an express term of a contract, whether the contract is integrated or not;
(6) parol evidence may never consist of earlier negotiations inconsistent with the final contract, whether the final document is integrated or not;
(7) when there is no dispute regarding what the words of the contract consist of (and there is no dispute regarding what any parol evidence admitted to clarify an ambiguity actually is), and the only remaining dispute is over what those undisputed words and parol evidence mean, then all that remains is a pure question of law for the court.
The dissent specifically focused on the Parol Evidence Rule which in most cases have prevented the conversation between the patrons and the mechanical bull operator from being offered into evidence.
The court voided the release and allowed the intentional tort of battery to proceed.
So Now What?
This upends release law in Nevada. Your release must be able to prove the guest understood the risks they may encounter, All of the risks.
Any statements made by your staff, could alter your release, worse, alter the understanding of the release or the risks, creating an issue that will have to go to trial to determine.
Bringing an intentional tort into a lawsuit is another game changer. Raft guides that intentional hit a rock, bump a boat, or even flip a boat will create liability in Nevada for any injury their customers receive.
What do you think? Leave a comment.
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