Release used to defend third party participants in horseback case applying Missouri’s law, not the main party to the contract.Posted: May 25, 2020 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Illinois, Missouri, Release (pre-injury contract not to sue) | Tags: additionally, Animal, argues, Assumption of risk, Cause of action, Choice of Law, conflict of laws, contacts, defense motion, deposition, Equine, Equine Liabililty Act, Exculpatory clause, Friends, Gross negligence, Horse, horseback riding, Illinois, injuries, kicked, Missouri, Motion to Dismiss, Other Participant, parties, principles, RELEASEES, ride, Risks, signing, sponsors, Summary judgment, the Animal Control Act, Third Party Beneficiary, Trail, Trial court 1 Comment
Illinois resident sues Illinois’s resident for getting kicked by a horse in a riding area in Missouri. Area’s release included coverage for participants and protected horse owner from suit.
Perkinson v. Courson, 2018 IL App (4th) 170364, 97 N.E.3d 574, 2018 Ill. App. LEXIS 120, 420 Ill. Dec. 692
State: Illinois, Appellate Court of Illinois, Fourth District Applying Missouri law
Plaintiff: Deanna L. Perkinson
Defendant: Sarah Courson
Plaintiff Claims: Violation of the Animal Control Act and Negligence
Defendant Defenses: Release (neither party brought up the Missouri Equine Liability Act)
Holding: For the Defendant
The term “other participants,” was used in a release signed to access land to ride horses to defend the owner of a horse that kicked another horse owner. The term was sufficient to include the rider in the protection the release afforded. Neither party argued the Equine Liability Act of Missouri where the incident took place.
Plaintiff testified she engaged in horseback riding on and off since the age of five. She and her husband owned nine horses and were part of a group of friends that rode horses together. Plaintiff estimated that 20 to 25 people were in their group, including defendant. She further estimated that she and defendant went horseback riding together approximately five or six times a year. Within plaintiff’s group of horseback riding friends, there were people that plaintiff was closer to and whom she would talk with about going on horseback riding trips. Plaintiff testified she was not close friends with defendant. She denied that they spent time socially at one another’s homes or that they participated in any activities together other than horseback riding.
In August 2014, individuals from plaintiff’s horseback riding group went on a trip to Cross Country Trail Ride, LLC (Cross Country), in Eminence, Missouri. According to plaintiff, each year, Cross Country organized a trail ride event during Labor Day weekend. She had previously attended the event approximately six times. Plaintiff testified Cross Country provided its paying guests with a campsite, stalls for horses, entertainment, and food.
On August 28, 2014, plaintiff arrived at Cross Country with her husband, daughter, and stepdaughter. The family took four of their own horses and met up with other individuals from plaintiff’s group of friends. Plaintiff stated she had not known whether defendant would be on the trip but saw defendant at Cross Country on the evening of her arrival.
Plaintiff acknowledged signing certain documents upon her arrival at Cross Country on August 28, 2014. She identified her signature on forms that were submitted as exhibits during her deposition and recalled signing similar forms during her previous visits to Cross Country. Plaintiff acknowledged that part of the form she signed was titled “Release of Liability” and instructed her to read before signing; however, plaintiff testified she did not read the form because she had driven a long distance to get to Cross Country and believed it “was just to register.” Plaintiff admitted signing similar forms on behalf of her daughter and stepdaughter.
Plaintiff testified that prior to signing the Cross Country forms, she understood that there was a risk of injury when participating in horseback riding events, including falling off a horse or being kicked. Despite that risk of injury, she participated anyway. Further, plaintiff testified she would have proceeded with the trail ride at Cross Country if she had read the form she signed, which included a warning about the risk of injury when participating in horseback riding events and statements indicating she fully assumed the risks of participation. Plaintiff acknowledged that the form she signed used the phrase “other participants.” She agreed that defendant would have been “another participant” in the activities at Cross Country.
On August 29, 2014, plaintiff, her family, and members of her group intended to take a six-hour trail ride on one of the “identified trails” at Cross Country. Plaintiff was riding a horse named Chester, and defendant was riding a horse named Little Bit. Plaintiff did not recall ever previously being around Little Bit. Further, she acknowledged consuming beer during the trail ride. Plaintiff stated she also observed that defendant was consuming alcohol and believed defendant was intoxicated. During a break on the trail ride, defendant told plaintiff that Little Bit “had kicked [defendant’s] husband while her husband was in the pasture.” She did not remember defendant telling her when the kick occurred or that the horse was in heat at the time. Plaintiff stated she did not notice anything concerning about Little Bit’s behavior while horseback riding on the day of the incident.
At some point during the trail ride, plaintiff and defendant began riding next to one another and were talking. Plaintiff did not recall who approached whom or how long they rode next to each other. As they were riding together down a hill, defendant’s horse kicked out with both of its rear legs and struck plaintiff on her right shin. Plaintiff did not know what caused the horse to kick. Following the kick, plaintiff had to be helped off her horse, and an ambulance was called to the scene. Plaintiff stated she had a broken bone in her shin and, ultimately, underwent two surgeries.
Plaintiff testified that during the trail ride defendant should have put a red ribbon on her horse’s tail to warn others that her horse was known to kick. She asserted, however, that the presence of a red ribbon would not have altered her own behavior. Additionally, plaintiff stated she returned to Cross Country for horseback riding after the August 2014 incident with defendant’s horse. Although she did not plan on attending Cross Country’s Labor Day event in 2016, she did plan to go to another location in Missouri for a Labor Day trail ride.
Analysis: making sense of the law based on these facts.
This is a complicated case because it was started in Illinois after the accident happened in Missouri. Consequently, the issues that support the outdoor recreation industry are woven around the other issues such as where the lawsuit should be and what law should be applied to the case.
The court was an Illinois court and the defendant, and the plaintiffs were Illinois’s residents. However, because the accident occurred in Missouri, the court applied Missouri’s law to the case.
The court first looked at Missouri’s law and the requirements to prove negligence.
To obtain relief in a negligence cause of action, “‘the plaintiff must establish that (1) the defendant had a duty to the plaintiff; (2) the defendant failed to perform that duty; and (3) the defendant’s breach was the proximate cause of the plaintiff’s injury.'”
Then the assumption of the risk doctrine was reviewed as applied in Missouri.
Under the “assumption of the risk doctrine” a person who “voluntarily consents to accept the danger of a known and appreciated risk may not sue another for failing to protect him from it.”
A document showing the plaintiff assumed the risks or explicitly accepted the risks is called an express assumption of the risk document in Missouri (and most other states).
An express assumption of risk is the simplest application of the doctrine and “recognizes that, when a plaintiff makes an express statement that he is voluntarily accepting a specified risk, the plaintiff is barred from recovering damages for an injury resulting from that risk.” An express assumption of risk “most often involves a written waiver or release by the would-be plaintiff.” Further, “in an ‘express assumption of the risk’ case, the plaintiff’s consent relieves the defendant of any duty to protect the plaintiff from injury.”
The Missouri law concerning releases was analyzed.
Although exculpatory clauses in contracts releasing an individual from his or her own future negligence are disfavored, they are not prohibited as against public policy.” “[C]ontracts exonerating a party from acts of future negligence are to be ‘strictly construed against the party claiming the benefit of the contract, and clear and explicit language in the contract is required to absolve a person from such liability.'” Missouri law requires “clear, unambiguous, unmistakable, and conspicuous language in order to release a party from his or her own future negligence,” and “[g]eneral language will not suffice.” “‘The words “negligence” or “fault” or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs. There must be no doubt that a reasonable person agreeing to an exculpatory clause actually understands what future claims he or she is waiving.’
In this case, the release was not signed because of a legal relationship between the parties, but was signed as part of accessing the land where the accident occurred. Meaning both parties signed the release to ride on the land. Consequently, the argument centered around whether that release was written to protect parties such as the defendant in this case. Whether the release signed by the plaintiff to ride on the land of the landowner provided protection to the owner of the horse that kicked her.
Additionally, [o]nly parties to a contract and any third-party beneficiaries of a contract have standing to enforce that contract.” To be deemed a third-party beneficiary, the terms of the contract must clearly express intent to benefit the third party or an identifiable class of which the third party is a member. When an express declaration of intent is lacking, a strong presumption exists “‘that the third party is not a beneficiary and that the parties contracted to benefit only themselves.'”
As in most other states, to understand a contract you must determine the effect intended by the parties to be given to the contract. Each clause should be read in the context of the entire contract, not as individual issues. The information within the “four corners” of the contract is the only information that can be reviewed by a court in determining the meaning of a contract, unless the contract is ambiguous, then outside information can be brought into to define the ambiguous section.
A contract is ambiguous when “duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.”
The language of the release referred to “other participants.” The defendant argued that she was the intended beneficiary of this language. If the defendant was found to be the intended beneficiary, then the release would stop the claims of the plaintiff. The term other participants usually follows the name of the party wanting the release to be signed. In this case, the landowner would have their name as the party to be protected and the clause and other participants followed. Did the term have legal meaning and apply to the defendant or was the term just dicta, additional language in the agreement that had no meaning.
The plaintiff argued that she did not know what she was signing and therefore, could not have intended the release to benefit the defendant. The plaintiff also argued the phrase “other participants” was ambiguous.
However, the court disagreed and found it covered the defendant and was not a catch-all phrase. The court found the defendant was a participant within the meaning of the words and the language of the release.
The final failure of the plaintiff’s argument fell when the court brought up that in her own deposition, she characterized the defendant as another participant in the trail ride.
The next argument, is another argument that is surfacing in plaintiff’s arguments across the US. The plaintiff argued the release should not apply because it purports to relieve liability for more than simple negligence. Meaning the release was written to cover intentional torts, gross negligence and other activities of the public interest.
However, the court did not agree with that argument because the release did not refer to any additional legal theories other than negligence. The release only used the term negligence and did not sue any language that extended that term to a greater definition.
The court also quoted a Missouri Supreme Court decision that held that the plaintiff could not get a release thrown out by arguing it covered gross negligence. Missouri does not recognize gross negligence. Since it does not exist under Missouri’s law, it could not be used to void a release.
In DeCormier v. Harley-Davidson Motor Co. Group, Inc., the Missouri Supreme Court stated that it would “enforce exculpatory agreements to protect a party from liability for their own negligence” and a plaintiff could not “avoid this rule by alleging [a defendant was] grossly negligent because Missouri’s courts do not recognize degrees of negligence at common law.” Thus, it rejected the precise argument plaintiff has raised in this case both before the trial court and on appeal.
Nor does Missouri recognize a cause of action for recklessness.
The next argument was the release was not clear because it was mixed in with another form. The top part of the form was labeled a registration form, and the bottom part was a release.
The court recognized this but found the release part of the form was labeled Release of Liability – Read Before Signing and separated by a dotted line from the top of the form. The significant language in the release was also capitalized for emphasis.
The court held with the trial court and found the release signed by the parties to ride on the property protected the defendant in this case.
So Now What?
This is the first case I have found where a release was used to protect a third party from a lawsuit. I have long argued that this should be the case. Even though the release was signed for a land owner, any litigation is going to cost many parties money. The decision does not say, however, in cases like this many times, the landowner and other participants in the ride are deposed, and as such they lose work and possibly incur legal fees for the depositions.
Having the release be part of a registration form was an issue. Eliminate the argument by the plaintiff and make it a separate form. If you need more information than what is normally required on a release collect it a different way or at the end.
What do you think? Leave a comment.
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