Posted: July 2, 2018 | Author: Recreation Law | Filed under: Maine, Racing, Release (pre-injury contract not to sue) | Tags: bleachers, Cause of action, citation omitted, civil action, claimant, common law, consortium, contractual, contractually, crew, derivative, Derivative Claim, extinguish, Indemnification, indemnity agreements, indirectly, loss of consortium, married, negligence claim, negligence liability, occasioned, own name, own negligence, particularity, pit, plain language, Public Policy, raceway, Release, releasee, spouse, tort action |
In most states, a loss of consortium claim is a derivative claim, meaning that the claim is successful if the original claim, the husband’s claim is successful.
In Maine, a loss of consortium claim may be derivative or independent and is based on a statute.
Hardy et al. v. St. Clair d/b/a Wiscasset Raceway,1999 ME 142; 739 A.2d 368; 1999 Me. LEXIS 161
State: Maine, Supreme Judicial Court of Maine
Plaintiff: Brent D. Hardy et al.
Defendant: David St. Clair d/b/a Wiscasset Raceway
Plaintiff Claims:
Defendant Defenses:
Holding:
Year: 1999
Summary
In the majority of states, a loss of consortium claim is a derivative claim, and a release stops those claims as well as the original claim of the injured plaintiff. In Maine, a loss of consortium claim is a separate claim and not stopped when the plaintiff signs a release.
Facts
The husband was part of a pit crew for a race car. He signed a release to enter the track and work on the race car he crewed for. During the race, a specific set of seats in the bleachers were reserved for the pit crew. While sitting in the bleachers, a plank on a set of bleachers collapsed, injuring him.
The trial court granted summary judgment on the husband’s claim but allowed the wife’s loss of consortium claim to continue.
Maine’s loss of consortium claims was originally only available to a husband when a wife was injured. When the first claims from wives appeared based on husband’s injuries the courts determined it was not their job to make that decision on whether the wife had a claim, that it was the legislature’s responsibility. “However, “under common law, a wife had no cause of action for her loss of consortium occasioned by her husband’s injuries.”
The Maine legislature passed a law giving both husband and wife when married, loss of consortium claims. The statute stated the claims were available to be brought in the person’s own name or in their spouse’s name.
In most states, a loss of consortium claim is a derivative claim. This means the claim is brought with the injured spouse’s claim and is subject to the defenses to the injured spouse’s claim. Alternatively, the non-injured spouse can only win if the injured spouse wins.
Based on the language of the Maine Statute, the trial court determined the loss of consortium claim of the non-injured spouse could continue. The defendant appealed that decision and this is the Maine Supreme Court’s decision on that issue.
Analysis: making sense of the law based on these facts.
The court started by reviewing the release, and Maine release law. As in most states, the court started its analysis with:
Courts have traditionally disfavored contractual exclusions of negligence liability and have exercised a heightened degree of judicial scrutiny when interpreting contractual language [that] allegedly exempts a party from liability for his own negligence.”
Under Maine’s law, this means that a release must “expressly spell out with the greatest particularity the intention of the parties contractually to extinguish negligence liability” That means the court must look at the plain language of the agreement and determine the intent of the parties as set forth in the agreement.
Although the release was mainly written to cover injuries received as a member of the pit crew and stock-car racing, the court found that since the seating area where the injury occurred could only be occupied by members of a pit crew, the release covered the injuries the plaintiff suffered when the plank broke. The court stated.
…had Brent not been participating in the race events, he would not have been on the section of bleachers that collapsed because that section was reserved for members of the pit crews and not open to the general public
The plaintiff’s injuries were determined to have risen directly from the racing event. Overall, the court determined the agreement was written to extinguish negligence liability.
Finding the release prevented the claims of the husband, the court then turned to the issue of the loss of consortium claim of the spouse.
Looking at the law of releases, a release only bars’s claims of the person who signed the release. If the wife’s claims are derivative, then her claims would be barred also when the husband signed the release.
States adopting the derivative approach generally conclude that a cause of action for loss of consortium is subject to the same defenses available in the injured spouse’s underlying tort action. States adopting the independent approach generally conclude that a consortium claim is not subject to such defenses.
However, under the statute, the court found that loss of consortium claims in Maine are separate, independent causes of action. The wife’s loss of consortium claim could continue.
So Now What?
In Maine, and the minority of states that follow this line of reasoning, to bar all claims for injuries, a defendant is going to have to get a signature on a release for everyone who might have a claim based upon the injury of the injured person.
That could mean the spouse would have to sign a release, minor children if they are allowed, heirs of the plaintiff if he dies, or anyone else that could bring a claim all would have to release any possible defendant.
Understand if you live in a state where the loss of consortium claims is derivative and covered by a release or stand-alone and not covered by your release.
 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 six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management
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Posted: June 25, 2018 | Author: Recreation Law | Filed under: Legal Case, Maine, Release (pre-injury contract not to sue) | Tags: bleachers, Cause of action, citation omitted, civil action, claimant, common law, consortium, contractual, contractually, crew, derivative, extinguish, Indemnification, indemnity agreements, indirectly, loss of consortium, married, negligence claim, negligence liability, occasioned, own name, own negligence, particularity, pit, plain language, Public Policy, raceway, releasee, spouse, tort action |
Hardy et al. v. St. Clair d/b/a Wiscasset Raceway,1999 ME 142; 739 A.2d 368; 1999 Me. LEXIS 161
Brent D. Hardy et al. v. David St. Clair d/b/a Wiscasset Raceway
Wal-99-107
SUPREME JUDICIAL COURT OF MAINE
1999 ME 142; 739 A.2d 368; 1999 Me. LEXIS 161
September 10, 1999, Argued
October 15, 1999, Decided
DISPOSITION: [***1] Judgment affirmed.
CORE TERMS: consortium, spouse, loss of consortium, cause of action, derivative, raceway, public policy, common law, negligence liability, negligence claim, indemnity agreements, releasee, own negligence, own name, civil action, citation omitted, indemnification, contractual, extinguish, indirectly, occasioned, claimant, married, bleachers, crew, pit, plain language, tort action, particularity, contractually
COUNSEL: Attorneys for plaintiffs: James C. Munch III, Esq., (orally), Marvin G. Glazier, Esq., Vafiades, Brountas & Kominsky, Bangor, ME.
Attorneys for defendant: Richard L. Suter, Esq., (orally, George D. Hepner III, Esq., Suter & Hepner, P.A., Falmouth, ME.
JUDGES: Panel: RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.
OPINION BY: RUDMAN
OPINION
[**369] RUDMAN, J.
[*P1] Brent D. Hardy and Carie Hardy appeal and David St. Clair cross-appeals from a summary judgment entered in the Superior Court (Waldo County, Marsano, J.) concluding that a release signed by Brent D. Hardy barred his negligence claim, but did not bar his wife’s claim for loss of consortium. We agree with the trial court and affirm the judgment.
[*P2] This action arises from injuries allegedly sustained by Brent D. Hardy at the Wiscasset Raceway, a facility owned by David St. Clair. As a condition to Brent’s service as a member of a pit crew supporting a race car racing at the raceway, Brent was required to sign a document entitled “Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement.” Brent was injured when a plank on a set of bleachers at the raceway reserved for members of the [***2] pit crews collapsed under him. The trial court granted a summary judgment in favor of the raceway on the basis that the agreement barred Brent’s negligence claim, but concluded that the agreement did not bar Carie’s loss of consortium claim. This appeal ensued.
I.
[*P3] The Hardys contend that the agreement is ambiguous and violates Maine law and public policy and that the peril which caused Brent’s injury was not contemplated by the parties. “Courts [HN1] have traditionally disfavored contractual exclusions of negligence liability and have exercised a heightened degree of judicial scrutiny when interpreting contractual language [that] allegedly exempts a party from liability for his own negligence.” 1 [HN2] Doyle v. Bowdoin College, 403 A.2d 1206, 1207 (Me. 1979). Accordingly, a release must “expressly spell out with the greatest particularity the intention of the parties contractually to extinguish negligence liability.” Id. (internal quotations omitted). To discern the parties’ intention, we look to the plain language of the agreement.
1 Wiscasset Raceway cites Doyle v. Bowdoin College, 403 A.2d 1206, 1207-08 (Me. 1979) and Emery Waterhouse Co. v. Lea, 467 A.2d 986, 993 (Me. 1983). In support of its contention that, “under Maine law, release and indemnity agreements exempting the releasee/indemnitee from liability for his or her own negligence are considered lawful and are not against public policy.” In Doyle, 403 A.2d at 1207 n.2, we declined to address whether such agreements were unlawful and contrary to public policy, stating:
Because we do not construe the documents executed … as releases or indemnification agreements, we have no occasion to reach the further issue whether contractual provisions which relieve a party from liability for that party’s own negligence would be unenforceable and void as contravening public policy. See, e.g., Tunkl v. Regents of University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441 (1963); Prosser, Torts § 68 (4th ed. 1971).
In Emery Waterhouse Co., 467 A.2d at 993, we stated that “indemnity [HN3] clauses to save a party harmless from damages due to negligence may lawfully be inserted in contracts . . ., and such clauses are not against public policy.”
[*P4] [***3] The pertinent provisions of the Agreement state that, by signing the document, Brent:
2. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE [Wiscasset Raceway] FROM ALL LIABILITY [sic]… FOR ANY AND ALL LOSS OR DAMAGE, AND ANY CLAIM OR DEMANDS THEREFOR ON ACCOUNT OF INJURY TO THE PERSON OR PROPERTY … ARISING OUT OF OR RELATED TO THE EVENT(S), WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.
. . . .
[**370] 4. HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE arising out of or related to the EVENT(S) whether caused by the NEGLIGENCE OF RELEASEES or otherwise.
. . . .
6. HEREBY agrees that this Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement extends to all acts of negligence by the Releasees . . . and is intended to be as broad and inclusive as is permitted by the laws. . . .
The Agreement further provides:
I HAVE READ THIS RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT, FULLY UNDERSTAND ITS TERMS, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND INTEND MY SIGNATURE TO BE A COMPLETE AND [***4] UNCONDITIONAL RELEASE OF ALL LIABILITY TO THE GREATEST EXTENT ALLOWED BY LAW.
[*P5] According to the second and fourth paragraphs of the Agreement, Brent cannot recover for any injuries “arising out of or related to the EVENT(S).” The term “EVENT(S)” refers to Wiscasset Raceway’s “Regular Races & 50 Lap Heavyweight.” Although Brent did not receive injuries directly “arising out of or related to the events,” his injuries were related to the events and indirectly resulted from them. The race events did not directly cause the bleachers to collapse under Brent. However, had Brent not been participating in the race events, he would not have been on the section of bleachers that collapsed because that section was reserved for members of the pit crews and not open to the general public.
[*P6] In light of other broader language in the Agreement, however, this appeal does not turn on whether the Agreement expressly extinguishes Wiscasset Raceway’s negligence liability for injuries indirectly arising out of the racing events. The sixth paragraph provides that the scope of the Agreement “extends to all acts of negligence by [Wiscasset Raceway] . . . And is intended to be as broad [***5] and inclusive as is permitted by the laws.” Further, the last portion of the Agreement indicates that Brent intended his signature to be “A COMPLETE AND UNCONDITIONAL RELEASE OF ALL LIABILITY TO THE GREATEST EXTENT ALLOWED BY LAW.” Even when strictly construed against Wiscasset Raceway, the Agreement “expressly spell[s] out with the greatest particularity the intention of the parties contractually to extinguish negligence liability.” Doyle, 403 A.2d at 1207 (internal quotations omitted). In light of the plain language of the Agreement, the trial court did not err in concluding that the Agreement barred Brent’s negligence claim.
II.
[*P7] By way of cross-appeal, Wiscasset Raceway contends that the trial court erred in concluding that the Agreement did not bar Carie’s loss of consortium claim. Wiscasset Raceway argues that, “under Maine law, although a loss of consortium claim is often referred to as being both ‘derivative’ and ‘independent,’ such claims are often greatly limited by statutory and common law defenses associated with the injured spouse’s cause of action.” Wiscasset Raceway further contends that, regardless, the indemnification provision bars Carie’s [***6] loss of consortium claim. 2 In response, the Hardys argue that Carie’s consortium claim was independent, and [**371] that Brent did not have the ability to release her claim without her consent.
2 Although we recognize that the indemnification clause contained in the Agreement may render this determination a pyrrhic victory, the existence of that clause, by itself, cannot eliminate the noninjured spouse’s claim.
[*P8] “For centuries[,] courts have recognized a husband’s right to recover damages for the loss of consortium 3 when a tortious injury to his wife detrimentally affects the spousal relationship.” Macomber v. Dillman, 505 A.2d 810, 813 (Me. 1986). However, “under common law, a wife had no cause of action for her loss of consortium occasioned by her husband’s injuries.” Dionne v. Libbey-Owens Ford Co., 621 A.2d 414, 417 (Me. 1993). In 1965, in Potter v. Schafter, we declined to “judicially legislate” such a cause of action and, instead, deferred to the Legislature [***7] so that “the diverse interests affected by such proposition may be heard.” Potter v. Schafter, 161 Me. 340, 341-43, 211 A.2d 891, 892-93 (1965). In 1967, “fun response to our decision in Potter v. Schafter, the Legislature enacted section 167-A of Title 19[,] [which] provided that ‘[a] married woman may bring a civil action in her own name for loss of consortium of her husband.'” Dionne, 621 A.2d at 417 (footnote omitted) (citation omitted). Thereafter, the Legislature repealed section 167-A and replaced it with the gender-neutral section 302 of Title 14, which provides that [HN4] “[a] married person may bring a civil action in that person’s own name for loss of consortium of that person’s spouse.” 14 M.R.S.A. § 302.
3 [HN5] The term “consortium” refers to “the nonpecuniary interests a person may have in the company, cooperation, affection, and aid of another.” BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 208 (2d ed. 1995). “Consortium” [HN6] means the “conjugal fellowship of husband and wife, and the right of each to the company, society, co-operation, affection, and aid of the other in every conjugal relation.” BLACK’S LAW DICTIONARY 309 (6th ed. 1990). BLACK’S LAW DICTIONARY further states:
Loss of “consortium” consists of several elements, encompassing not only material services but such intangibles as society, guidance, companionship, and sexual relations. Damages for loss of consortium are commonly sought in wrongful death actions, or when [a] spouse has been seriously injured through [the] negligence of another, or by [a] spouse against [a] third person alleging that he or she has caused [the] breaking-up of [the] marriage. [A] cause of action for
“consortium” occasioned
by injury to [a] marriage partner[] is a separate cause of
action belonging to
the
spouse of
the
injured
married partner and [,]
though
derivative
in the sense
of being occasioned by injury to [the]
spouse, is a
direct
injury to the spouse
who has lost the
consortium.
Id. (citations omitted) (emphasis added).
[*P9] [***8] As an initial matter, the Agreement did not directly bar Carie’s consortium claim because she did not sign it and was not a party to the contract. [HN7] A release is a contract that can only bar a claim if the claimant was a party to the agreement. See, e.g., Bowen v. Kil-Kare, Inc., 63 Ohio St. 3d 84, 585 N.E.2d 384, 392 (Ohio 1992); Arnold v. Shawano County Agric. Soc’y, 111 Wis. 2d 203, 330 N.W.2d 773, 779 (Wis. 1983). Hence, the issue facing us is whether, by expressly barring Brent’s negligence claim, the Agreement indirectly barred Carie’s consortium claim. Stated otherwise, we must determine whether a consortium claim is “derivative” or “independent.”
[*P10] Jurisdictions are divided over whether to treat a loss of consortium claim as a “derivative” or “independent” cause of action with regard to the underlying tort claim. 4
See, e.g., McCoy v. Colonial Baking [**372] Co., 572 So. 2d 850, 856-61 (Miss. 1990) (comparing positions of state courts); Carol J. Miller, Annotation, Injured Party’s Release of Tortfeasor as Barring
Spouse’s
Action for
Loss
of Consortium, 29 A.L.R.4th 1200 (1981) [***9] (analyzing state and federal cases). States adopting the derivative approach generally conclude that a cause of action for loss of consortium is subject to the same defenses available in the injured spouse’s underlying tort action. See Miller, supra. States adopting the independent approach generally conclude that a consortium claim is not subject to such defenses. See id.
4 The terms “derivative” and “independent” are imprecise, and may be misleading. See, Jo-Anne M. Balo, Loss of Consortium: A Derivative Injury Giving Rise to a Separate Cause of Action, 50 FORDHAM L. REV. 1344, 1351-54 (1982) (noting that “there is no precise definition of a derivative action”). According to another commentator:
Writers have observed that the conflict which has developed in such cases “suggests the need for basic explanations of which there has been something of a shortage” and that a court’s adoption of either the derivative or independent approach “sounds more like a conclusion than a reason.” The question confusing courts is whether the consortium claim is dependent upon the injury or the injured spouse’s cause of action.
Antonios P. Tsarouhas, Bowen v.
Kil-Kare,
Inc.: The Derivative
and
Independent Approach to Spousal Consortium, 19 OHIO N.U. L. REV. 987, 990-91 (1993) (citations omitted) (emphasis added).
[*P11] [***10] Although we have heretofore declined to address whether a consortium claim is “derivative” or “independent,” see, e.g., Morris v. Hunter, 652 A.2d 80, 82 (Me. 1994); Box v. Walker, 453 A.2d 1181, 1183 (Me. 1983), 5 our case law lends support for the trial court’s conclusion that consortium claims are separate, independent causes of action. In Taylor v. Hill, 464 A.2d 938, 944 (Me. 1983), we recognized that [HN8] a consortium claim, “though derived from an alleged injury to the person of [the claimant’s spouse], constitutes a distinct and separate cause of action.” Similarly, in Dionne, 621 A.2d at 418, we indicated that a wife’s statutory right to bring a consortium claim “belongs to the wife and is separate and apart from the husband’s right to bring his own action against the party responsible for his injuries.”
5 In Box v. Walker, 453 A.2d 1181, 1183 (Me. 1983), we declined to decide whether a consortium claim is “derivative” or “independent,” but noted that [HN9] “an independent cause of action accrues when the plaintiff is damaged by the negligent conduct of the defendant; the law will imply nominal damages from any violation of the plaintiffs rights.” Box v. Walker, 453 A.2d 1181, 1183 (Me. 1983).
[*P12] [***11] The express language of section 302 offers no support for the conclusion that a consortium claim is entirely “derivative.” See 14 M.R.S.A. § 302. To the contrary, section 302’s provision that a consortium claimant may bring a civil action “in that person’s own name” suggests that the cause of action is independent and separate from the underlying tort action of the victim spouse. 14 M.R.S.A. § 302. Further, we have recognized that the Legislature, by enacting the statutory predecessor to section 302, “established a separate right to the wife.” Dionne, 621 A.2d at 418 (holding that damages wife recovered under consortium claim were not subject to husband’s employer’s lien). Although derivative in the sense that both causes of action arise from the same set of facts, the injured spouse’s claim is based on the common law of negligence while the claim of the other spouse is based on statutory law. Each claim is independent of the other and the pre- or post-injury release of one spouse’s claim does not bar the other spouse’s claim. A consortium claim is an independent cause of action, and, therefore, the trial court committed no error in ruling that [***12] the Agreement failed to bar Carie’s consortium claim. 6
6 We need not determine whether a loss of consortium claim may be subject to traditional common law or statutory defenses to the claims of the injured spouse. We decide only that [HN10] a release of the injured spouse’s claim does not simultaneously release the loss of consortium claim of the noninjured spouse.
The entry is:
Judgment affirmed.
Posted: May 28, 2018 | Author: Recreation Law | Filed under: Assumption of the Risk, Connecticut, Release (pre-injury contract not to sue) | Tags: abolished, admit, Assumption of risk, assumption of the risk, comparative negligence, conceptually, contractual, Duty of care, exculpatory, favorable, Inherent Risks, legal doctrine, legal sufficiency, legally insufficient, legislatively, Motion to Strike, own negligence, participating, pre-injury, Pre-injury Release, present case, re-leasing, Release, relieve, risks inherent, risky, Rope Swiing, special defenses, statutory prohibition, struck, sustaining |
Here the defendant used a release. The plaintiff argued it was a waiver and assumption of the risk document and should be barred because they had been outlawed in Connecticut as a defense. The court agreed.
Rodriguez v. Brownstone Exploration & Discover Park, LLC, 2017 Conn. Super. LEXIS 844
State: CONNECTICUT, SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF FAIRFIELD AT BRIDGEPORT
Plaintiff: Yulissa Rodriguez
Defendant: Brownstone Exploration & Discover Park, LLC
Plaintiff Claims:
Defendant Defenses:
Holding: for the defendant
Year: 2017
Summary
The plaintiff was injured using a rope swing at the defendant’s park.
Many states abolished the defense of Assumption of the risk. In this case, the plaintiff argued that the release she signed was just an assumption of the risk document and was void because that defense was abolished.
The plaintiff also argued the document was titled a waiver and therefore, was not a release. Both arguments of the defendant were struck down. The first because a waiver is not a release and the second because the document was no different from an assumption of the risk document, which was no longer a defense in Connecticut.
Facts
Plaintiff filed a motion to strike the first two affirmative defenses, or here; the court referred to them as special defenses, the defendant pleaded. When a defendant answers a complaint, the defendant can plead the defenses to the specific facts and legal claims, and the defendant can plead affirmative defenses. Affirmative defenses are a list of approved defenses, that if they are not pled, are lost to the defendant.
Release is an affirmative defense in most states and was pled in this case.
To get rid of the special defenses, the plaintiff filed a motion to strike.
“‘A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike.’ A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.’ . . ‘In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency.’ . . . ‘On the other hand, the total absence of any factual allegations specific to the dispute renders [a special defense] legally insufficient.
The court’s response to the motion to strike is here.
Analysis: making sense of the law based on these facts.
The plaintiff’s argument was because the courts had abolished the defense f assumption of the risk, the releases were not valid because they were only proof of assumption of the risk. The plaintiff argued:
“Waiver” and “Release” are, in actuality, based on assumption of risk because they purport to relieve defendant of liability for risks inherent in the activity, which by statute is not a valid defense in this negligence action.
The first affirmative defense was waiver. In vast majority of states, a waiver is different from a release. Waiver’s can be revoked. When you waive a right, a lot of states allow you to revoke that waiver. A release is a contract and can only be terminated by the terms of the agreement.
The court reviewed the prior defense of assumption of the risk.
‘Traditionally, the doctrine provided a defendant with a complete defense to a claim of negligence that centered on the conduct of the plaintiff . . . [T]he assumption of risk variants fall generally into two separate categories: (1) a negligence defense that the plaintiff’s conduct operated so as to relieve the defendant of a duty of care with regard to the plaintiff; and (2) a negligence defense that, while conceding that the defendant owed a duty of care and breached that duty, precludes recovery by the plaintiff because the plaintiff was aware of the defendant’s negligence and the risk thereby created, but nevertheless chose to confront such risk.
However, the courts and or legislatures had abolished the defense because they felt it had not kept up with the times. Instead, the concept of assumption of the risk was part of the facts the jury undertook to determine the damages to be awarded to the plaintiff. If the plaintiff assumed the risk, then the jury could reduce the damages the plaintiff would receive.
Since then, many courts have reinstated the defense of assumption of the risk as a defense in sport and recreational activities. Many legislatures have also brought back the defense in statutes covering sports and recreational activities, such as Skier Safety Statutes. However, Connecticut has not done that. In Connecticut, assumption of the risk is not a defense; it has been merged into comparative negligence.
In this case, the release signed by the plaintiff was titled “Assumption of Risk, Release of Liability, Waiver of Claims & Arbitration Agreement.” The plaintiff argued that the document was a written assumption of risk document and should be void.
Under Connecticut law a Waiver is “the voluntary relinquishment or abandonment of a known right or privilege.” This is quite different from a release, which is contractually giving a right to sue over an injury prior to the injury. Waiver’s can be oral or in writing. The common waiver you hear about all the time is a criminal suspect on TV being told their rights. At any time, the criminal defendant can change their mind and not give up their rights because they waived their rights, which are reversible.
Connecticut courts have recognized that pre-injury waiver as a defense to a claim based on inherent risks from an activity is not the same as a waiver of a claim of defendant’s own negligence.
The court continued its analysis of Connecticut law by reviewing Connecticut Supreme Court decisions on the issue. Here the court differentiated between inherent risks, which are still assumed and assumption of risk as a defense.
…the Supreme Court differentiated between pre-injury release from inherent risks of an activity, defined by reference to a dictionary definition of “inherent” as “structural or involved in the constitution or essential character of something,” from release of negligence that involves the exercise of some control over the activity and/or conditions by defendant.
The court then found that the language of the waiver was only a defense to the inherent risks of the activity. A waiver under Connecticut law is not a release.
The language of the waiver provision here is limited to “the inherent risks of this activity” and is not broad enough to exculpate defendant for its own negligence.
The defendant was unable to prove that there was a difference between their documents and the loss of the assumption of risk defense. Meaning the defendant lost their motion because the waiver was the same in this case as assumption of the risk, which had been abolished.
Defendant has failed to show that the waiver special defense is the same as the assumption of risk defense abolished by C.G.S. §52-572h(l). Stated otherwise, defendant has failed to show the statutory prohibition extended to waiver by contract. The motion to strike the First Special Defense is denied.
The second motion based on release was also denied for the same reason.
A contractual release of liability for inherent risks from an activity is not conceptually the same thing as assumption of risk from participation in a risky activity. Defendant has failed to show that the release special defense is the same as the assumption of risk defense abolished by C.G.S. §52-572h(l). Stated otherwise, defendant has failed to show the statutory prohibition extended to releases by contract. The motion to strike the Second Special Defense is denied.
So Now What?
This decision picked through, carefully, the differences between a defense that had been merged into a way to determine damages, assumption of the risk, and a contractual document to release the defendant from liability.
The decision is also confusing as hell!
The result is you must carefully write your release in Connecticut. You must define the risks and have the signor agree those risks are inherent in the activity.
What do you think? Leave a comment.
Copyright 2018 Recreation Law (720) 334 8529
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Author: Outdoor Recreation Insurance, Risk Management and Law
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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Posted: April 23, 2018 | Author: Recreation Law | Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, New Hampshire, Release (pre-injury contract not to sue) | Tags: Acting Out, Animal, contract language, contravenes, entitled to judgment, exculpatory, exculpatory clauses, exculpatory provision, exhaustive, genuine, Horse, horseback riding, inclusive, issue of fact, matter of law, misunderstanding, Negligence, Notice, obscured, opportunity to prove, own negligence, personal injury, prefaced, Public Policy, qualifying, quotations, Reasonable person, Release, ridden, Summary judgment, tour guide, Trail Ride, unabridged, verb |
Release was signed for a trail ride and plaintiff claimed she told guide his horse was getting ready to act out before it kicked her.
Wright v. Loon Mountain Recreation Corporation, 140 N.H. 166; 663 A.2d 1340; 1995 N.H. LEXIS 119
State: New Hampshire, Supreme Court of New Hampshire
Plaintiff: Brenda Wright
Defendant: Loon Mountain Recreation Corporation d/b/a Loon Mountain Equestrian Center
Plaintiff Claims: Negligence
Defendant Defenses: Release
Holding: for the Plaintiff
Year: 1995
Summary
Twenty-year-old New Hampshire Supreme Court decisions shows how convoluted a court can get when it decides a release will not be enforced. Court held the language in the release was confusing. However, to get that point the court had to not read the release I think.
Facts
The plaintiff signed up for a trail ride with the defendant. While on the ride she was kicked in the leg by another horse. She sued. On appeal she argued that her guide had failed to respond to indications that his horse, the one that kicked the plaintiff, was about to “act out.”
While on the tour, the plaintiff was kicked in the leg by her guide’s horse and sustained an injury. She brought a negligence action against the defendant, alleging that her tour guide had failed to respond to indications that his horse was about to “act out.”
[Every time I’ve been bit or kicked by a horse there was no warning. Sure, if a horse’s ears go back, there is a warning, but most times, horse 1, Moss 0. I wish there were indications that a horse was going to act out.]
Prior to suing she signed a release. The trial court dismissed her claim because of the release. She appealed.
New Hampshire has a two-tier court system. The trial court is called the Superior Court and appeals from the Superior Court are appealed to the New Hampshire Supreme Court. This appeal was decided by the New Hampshire Supreme Court.
Analysis: making sense of the law based on these facts.
The entire issue before the court was “whether an exculpatory contract signed by the plaintiff, Brenda Wright, released the defendant, Loon Mountain Recreation Corporation, from liability for its own negligence.”
The defendant argued the release “clearly and specifically indicated an intent to release Loon Mountain from liability for injury resulting from its own negligence while [the plaintiff] was engaged in the activity of horseback riding’“.
The Supreme Court looked at this decision in its analysis in a slightly different way.
This court will not enforce an exculpatory contract that contravenes public policy. “Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that a reasonable person in his position would have known of the exculpatory provision.”
“Since the terms of the contract are strictly construed against the defendant, the contract must clearly state that the defendant is not responsible for the consequences of his negligence.”
The court then read the release to determine if a reasonable person would have known about the exculpatory clause in the release. The court then worked hard to find a reasonable person would not.
A reasonable person would understand the provision if its language “clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence . . . .” We will assess the clarity of the con-tract by evaluating it as a whole, not by examining isolated words and phrases.
We conclude that the contract structure and organization obscured the exculpatory clauses. Strictly construing the contract language against the defendant, we find the contract did not clearly relieve the defendant of responsibility for the sort of negligence at issue in this case.
The language the court examined was in all caps so the language stood out from the surrounding language. However, the court stated that when the entire agreement was read, the all cap language was unclear. (?) The court’s determination that the clause was not clear was based on the word therefore.
In this case, the term “therefore” is significant. A common definition of “therefore” is “for that rea-son: because of that: on that ground . . . .” Webster’s Third New International Dictionary 2372 (unabridged ed. 1961) (Webster’s). A clause that is introduced by the term “therefore” cannot be understood without reading the antecedent language.
The court found additional language that it held confused the meaning of the release. The court concluded its analysis with this statement.
The exculpatory contract lacks a straightforward statement of the defendant’s intent to avoid liability for its failure to use reasonable care in any way. The agreement easily could have been framed in a manner that would have expressed more clearly its conditions and exclusions.
There was a dissent by two justices. Both who found the majority’s analysis was just a little ridiculous.
So Now What?
Sometimes your release is not going to win. In those cases, you are going to rely on your insurance company. In this case, the court worked hard to find little ways it could justify its desire to not support the release.
Possibly, this release might have had a better chance with a simple clear statement that by signing the release the signor could not sue for negligence. This release reads like it was written by an attorney training to kill trees rather than write documents for consumers.
But!
What do you think? Leave a comment.
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Posted: April 18, 2018 | Author: Recreation Law | Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Legal Case, New Hampshire | Tags: Animal, contract language, contravenes, entitled to judgment, Equine, exculpatory, exculpatory clauses, exculpatory provision, exhaustive, genuine, Horse, horseback riding, inclusive, issue of fact, matter of law, misunderstanding, New Hampshire, Notice, obscured, opportunity to prove, own negligence, personal injury, prefaced, Public Policy, qualifying, quotations, Reasonable person, Release, ridden, Summary judgment, tour guide, Trail Ride, unabridged, verb |
Wright v. Loon Mountain Recreation Corporation, 140 N.H. 166; 663 A.2d 1340; 1995 N.H. LEXIS 119
Brenda Wright v. Loon Mountain Recreation Corporation d/b/a Loon Mountain Equestrian Center
No. 94-266
SUPREME COURT OF NEW HAMPSHIRE
140 N.H. 166; 663 A.2d 1340; 1995 N.H. LEXIS 119
August 22, 1995, Decided
SUBSEQUENT HISTORY: [***1] Released for Publication September 7, 1995.
PRIOR HISTORY: Merrimack County.
DISPOSITION: Reversed and remanded.
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff injured brought a negligence action against defendant tour company after being hurt while on a horseback riding tour. The injured appealed the decision of the Superior Court of Merrimack County (New Hampshire), which granted the tour company’s motion for summary judgment.
OVERVIEW: Before going horseback riding on the tour, the injured signed an exculpatory agreement that released the tour company from liability as a result of various occurrences. The tour company successfully argued in the trial court that the exculpatory agreement barred the injured’s suit. The court found that the issue of whether the injured understood the agreement presented an issue of fact. In assessing the clarity of the contract by evaluating it as a whole, the court found that the contract structure and organization obscured the exculpatory clauses and did not clearly relieve the tour company of responsibility for the sort of negligence at issue in the case. The court reasoned that one clause was understandable to relate to the inherent dangers of horseback riding and liability for injures that occurred for that reason. However, the court found that receiving an injury that would not have occurred but for a tour guide’s negligence was not an inherent danger. Because the contract did not put the injured on clear notice, the tour company was not entitled to summary judgment.
OUTCOME: The judgment was reversed, and the case was remanded.
CORE TERMS: horse, exculpatory, horseback riding, reasonable person, exculpatory provision, personal injury, own negligence, summary judgment, public policy, animal, exculpatory clauses, issue of fact, opportunity to prove, contravenes, inclusive, obscured, verb, tour guide, qualifying, notice, ridden, matter of law, entitled to judgment, contract language, misunderstanding, unabridged, exhaustive, quotations, prefaced, genuine
LexisNexis(R) Headnotes
Civil Procedure > Summary Judgment > Burdens of Production & Proof > Movants
Civil Procedure > Summary Judgment > Opposition > General Overview
Civil Procedure > Summary Judgment > Standards > Genuine Disputes
[HN1] The trial court must grant summary judgment when it finds no genuine issue of material fact, after considering the affidavits and other evidence presented in a light most favorable to the non-moving party, and when the moving party is entitled to judgment as a matter of law. The party opposing summary judgment must put forth contradictory evidence under oath, sufficient to indicate that a genuine issue of fact exists so that the party should have an opportunity to prove the fact at trial. All reasonable doubts should be resolved against the movant.
Contracts Law > Contract Conditions & Provisions > Exculpatory Clauses
Torts > Negligence > Defenses > Exculpatory Clauses > Interpretation
Torts > Procedure > Settlements > Releases > Construction & Interpretation
[HN2] The court will not enforce an exculpatory contract that contravenes public policy. Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that a reasonable person in his position would have known of the exculpatory provision. Since the terms of the contract are strictly construed against the defendant, the contract must clearly state that the defendant is not responsible for the consequences of his negligence.
Contracts Law > Contract Conditions & Provisions > Indemnity
[HN3] The plaintiff’s understanding presents an issue of fact, and the plaintiff should have an opportunity to prove the fact at trial unless the exculpatory language was clear and a misunderstanding was unreasonable.
Contracts Law > Contract Conditions & Provisions > Exculpatory Clauses
Contracts Law > Types of Contracts > Releases
Torts > Procedure > Settlements > Releases > General Overview
[HN4] The court examines the language of the release to determine whether a reasonable person in the plaintiff’s position would have known of the exculpatory provision. A reasonable person would understand the provision if its language clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence. The court assesses the clarity of the contract by evaluating it as a whole, not by examining isolated words and phrases.
HEADNOTES
1. Contracts–Liability for Negligence–Public Policy
New Hampshire Supreme Court will not enforce an exculpatory contract that contravenes public policy.
2. Contracts–Construction–Ambiguity
The plaintiff’s understanding of the release presents an issue of fact, and the plaintiff should have an opportunity to prove the fact at trial unless the exculpatory language was clear and a misunderstanding was unreasonable.
3. Contracts–Liability for Negligence–Exculpatory Provision
A reasonable person would “understand” an exculpatory provision if its language clearly and specifically indicated the intent to release the defendant from liability for personal injury caused by the defendant’s negligence.
4. Contracts–Liability for Negligence–Exculpatory Provision
Release language should be plain; a careful reading should not be necessary to divine the defendant’s intent.
5. Contracts–Liability for Negligence–Exculpatory Provision
The release language fails where it is obscured by qualifying terms and phrases and doesn’t put the plaintiff on clear notice.
COUNSEL: Craig, Wenners, Craig & Casinghino, P.A., of Manchester (Gary L. Casinghino and Gemma M. Dreher on the brief, and Mr. Casinghino orally), for the plaintiff.
Devine, Millimet & Branch, P.A., of Manchester (Gregory D. H. Jones and Joseph M. McDonough, III, on the brief, and Mr. Jones orally), for the defendant.
JUDGES: JOHNSON, J.; THAYER, J., with whom BROCK, C.J., joined, dissented; the others concurred.
OPINION BY: JOHNSON
OPINION
[*167] [**1341] JOHNSON, J. The question presented is whether an exculpatory contract signed by the plaintiff, Brenda Wright, released the defendant, Loon Mountain Recreation Corporation, from liability for its own negligence. The Superior Court (Manias, J.) found that the signed release barred the plaintiff’s negligence claim and granted the defendant’s motion for summary judgment. We reverse.
Before embarking on a horseback riding tour at the Loon Mountain Equestrian Center, owned and operated by the defendant, the plaintiff was asked to read, complete, and sign the following exculpatory [***2] agreement:
I accept for use, as is, the animals listed on this form and accept full responsibility for its care while it is in my possession. I have made no misrepresentation to Loon Mountain regarding my name, address or age. I agree to hold harmless and indemnify Loon Mountain Recreation Corporation and its owners, agents and employees for any loss or damage, including any that result from claims for personal injury or property damage related to the use of this animal.
I understand and am aware that horseback riding is a HAZARDOUS ACTIVITY. I understand that the above activity and the use of horses involves a risk of injury to any and all parts of my body. I hereby agree to freely and expressly assume and accept any and all risks of injury or death from the use of this animal while participating in this activity.
I understand that it is not possible to predict every situation and condition of the terrain a horse will be ridden on; therefore, it is impossible to guarantee the horse I am riding will react safely in all riding situations. [*168]
I realize that it is mandatory that I wear a helmet at all times while horseback riding, and that I will obey all trail signs [***3] and remain only on open trails.
I therefore release Loon Mountain Recreation Corporation, its owners, agents and employees FROM ANY AND ALL LIABILITY FOR DAMAGES AND PERSONAL INJURY TO MYSELF OR ANY PERSON OR PROPERTY RESULTING FROM THE NEGLIGENCE OF LOON MOUNTAIN RECREATION CORPORATION TO INCLUDE NEGLIGENCE IN SELECTION, ADJUSTMENT OR ANY MAINTENANCE OF ANY HORSE, accepting myself the full responsibility for any and all damages or injury of any kind which may result. (PLEASE SIGN: Brenda Wright/s)
I agree that there have been no warranties, expressed or implied, which have been made to me which extend beyond the description of the equipment listed on this form. I the undersigned, acknowledge that I have carefully read this agreement and release of liability, and I understand its contents. I understand that my signature below expressly waives any rights I have to sue Loon Mountain Recreation Corporation for injuries and damages.
The plaintiff signed this agreement after the fifth paragraph and at the bottom.
While on the tour, the plaintiff was kicked in the leg by her guide’s horse and sustained an injury. She brought a negligence action against the defendant, alleging [***4] that her tour guide had failed to respond to indications that his horse was about to “act out.” The defendant argued that the exculpatory contract barred the plaintiff’s suit and moved for summary judgment. The Superior Court (Manias, J.) granted its motion, and this appeal followed.
[**1342] On appeal, the defendant argues that we should uphold the trial court’s grant of summary judgment because the contract “clearly and specifically indicated an intent to release Loon Mountain from liability for injury resulting from its own negligence while [the plaintiff] was engaged in the activity of horseback riding.”
[HN1] The trial court must grant summary judgment when it finds no genuine issue of material fact, after considering the affidavits and other evidence presented in a light most favorable to the non-moving party, and when the moving party is entitled to judgment as a matter of law. The party opposing summary judgment must put forth contradictory [*169] evidence under oath, sufficient to indicate that a genuine issue of fact exists so that the party should have an opportunity to prove the fact at trial. All reasonable doubts should be resolved against the movant.
Phillips v. Verax [***5] Corp., 138 N.H. 240, 243, 637 A.2d 906, 909 (1994) (brackets, ellipses, and quotations omitted).
[HN2] This court will not enforce an exculpatory contract that contravenes public policy. Audley v. Melton, 138 N.H.. 416, 418, 640 A.2d 777, 779 (1994). “Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that a reasonable person in his position would have known of the exculpatory provision.” Barnes v. N.H. Karting Assoc., 128 N.H. 102, 107, 509 A.2d 151, 154 (1986). “Since the terms of the contract are strictly construed against the defendant, the contract must clearly state that the defendant is not responsible for the consequences of his negligence.” Id.
The plaintiff does not argue that the exculpatory contract contravenes public policy. Accordingly, we determine only whether “the plaintiff understood the import of the agreement,” and if not, whether “a reasonable person in [her] position would have known of the exculpatory provision.” Id.
The parties dispute whether the plaintiff understood the agreement to release the defendant from [***6] liability for its own negligence. [HN3] The plaintiff’s understanding presents an issue of fact, and the plaintiff should have an opportunity to prove the fact at trial unless the exculpatory language was clear and a misunderstanding was unreasonable. See Phillips, 138 N.H. at 243, 637 A.2d at 909; Barnes, 128 N.H. at 107, 509 A.2d at 154.
[HN4] We therefore examine the language of the release to determine whether “a reasonable person in [the plaintiff’s] position would have known of the exculpatory provision.” Barnes, 128 N.H. at 107, 509 A.2d at 154; cf. Raudonis v. Ins. Co. of North America, 137 N.H. 57, 59, 623 A.2d 746, 747 (1993) (interpretation of insurance contract language a question of law; we construe terms as would reasonable person in insured’s position). A reasonable person would understand the provision if its language “clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence . . . .” Barnes, 128 N.H. at 107, 509 A.2d at 154. We will assess the clarity of the contract by evaluating it as a whole, not by examining isolated [*170] words and phrases. See Chadwick v. CSI, Ltd., [***7] 137 N.H. 515, 524, 629 A.2d 820, 826 (1993).
We conclude that the contract structure and organization obscured the exculpatory clauses. Strictly construing the contract language against the defendant, we find the contract did not clearly relieve the defendant of responsibility for the sort of negligence at issue in this case. See Barnes, 128 N.H. at 107, 509 A.2d at 154.
The defendant emphasizes the language of the agreement’s fifth paragraph, which states: “I therefore release [the defendant] from ANY AND ALL LIABILITY FOR . . . PERSONAL INJURY TO MYSELF . . . RESULTING FROM THE NEGLIGENCE OF [THE DEFENDANT] TO INCLUDE NEGLIGENCE IN SELECTION, ADJUSTMENT OR ANY MAINTENANCE OF ANY HORSE, accepting myself the full responsibility for any . . . injury of any kind which may result.” (Emphasis added.) We find that when this clause is read within the [**1343] context of the entire agreement, its meaning is less than clear.
In this case, the term “therefore” is significant. A common definition of “therefore” is “for that reason: because of that: on that ground . . . .” Webster’s Third New International Dictionary 2372 (unabridged ed. 1961) (Webster’s). A clause that is introduced [***8] by the term “therefore” cannot be understood without reading the antecedent language.
The paragraphs preceding the exculpatory clause emphasize the inherent hazards of horseback riding. Because the exculpatory clause is prefaced by the term “therefore,” a reasonable person might understand its language to relate to the inherent dangers of horseback riding and liability for injuries that occur “for that reason.” Being kicked by a horse is a danger inherent to horseback riding; receiving an injury that would not have occurred but for a tour guide’s negligence, however, is not.
The exculpatory phrase in the fifth paragraph is further clouded by the qualifying language that follows. Pursuant to the contract, the defendant is released from liability for its negligence “to include negligence in selection, adjustment or any maintenance of any horse.” If we parse these terms, they do not necessarily restrict the defendant’s release to liability for negligent selection, adjustment, or maintenance of any horse. The superfluity of the terms, however, serves to obscure rather than clarify. Moreover, one sense of the word “inclusive” is “covering or intended to cover all items . . . .” Webster’s, [***9] supra at 1143. A reasonable person reading the clause thus might conclude that the agreement relieved the defendant of responsibility for the enumerated types of negligence only.
[*171] Whether the tour guide’s failure to control his horse constitutes “the negligent . . . maintenance of any horse,” is unclear. Webster’s gives several definitions for the word “maintain,” the two most relevant being: (1) “to keep in a state of repair, efficiency, or validity: preserve from failure or decline” and (2) “to provide for: bear the expense of: SUPPORT.” Webster’s, supra at 1362. When read in the context of selection and adjustment, therefore, a reasonable person in the position of the plaintiff might understand “the negligent . . . maintenance of any horse” to relate to negligent upkeep rather than control.
The contract is also unclear with respect to injuries involving horses not ridden by the plaintiff. The first, second, and third paragraphs emphasize only the horse that the plaintiff “accept[s] for use.” We reject the defendant’s argument that the phrase “use of this animal,” used in the first and second paragraphs, “is merely an alternative expression for the activity of ‘horseback [***10] riding.'” We also reject the defendant’s contention that the phrase “use of this animal” does not limit the contract’s application to injuries involving the plaintiff’s horse because “[a] careful reading . . . reveals that it is part of a clause modifying plaintiff’s agreement to ‘hold harmless and indemnify [the defendant] for any loss or damage. . . .'” The Barnes test requires that release language be plain; a careful reading should not be necessary to divine the defendant’s intent.
In Audley, we concluded:
Quite simply, the general release language does not satisfy the Barnes requirement that the contract must clearly state that the defendant is not responsible for the consequences of his negligence. The release fails in this respect not because it neglects to use the word ‘negligence’ or any other special terms; instead it fails because no particular attention is called to the notion of releasing the defendant from liability for his own negligence. The general language in the context of the release simply did not put the plaintiff on clear notice of such intent.
Audley, 138 N.H. at 419, 640 A.2d at 779 (quotations and citations omitted). [***11] Whereas the release language in Audley failed because it was too general, the release language in the present case fails because it is obscured by qualifying terms and phrases. The cases are similar, however, because neither contract put the plaintiff “on clear notice,” id.
The exculpatory contract lacks a straightforward statement of the defendant’s intent [**1344] to avoid liability for its failure to use reasonable [*172] care in any way. The agreement easily could have been framed in a manner that would have expressed more clearly its conditions and exclusions. The defendant was not entitled to judgment as a matter of law.
Reversed and remanded.
THAYER, J., with whom BROCK, C.J., joined, dissented; the others concurred.
DISSENT BY: THAYER
DISSENT
THAYER, J., dissenting: I would uphold the trial court’s grant of summary judgment because the exculpatory contract explicitly indicated an intent to release the defendant from liability for its own negligence. The contract in question purports to release the defendant from “ANY AND ALL LIABILITY FOR . . . PERSONAL INJURY TO MYSELF . . . RESULTING FROM THE NEGLIGENCE OF [THE DEFENDANT] TO INCLUDE NEGLIGENCE IN SELECTION, ADJUSTMENT OR ANY MAINTENANCE [***12] OF ANY HORSE.” The language clearly indicates an intent to release the defendant from liability for its own negligence. I agree with the majority that the use of the word “therefore” restricts the release to negligence associated with the inherent hazards of horseback riding. I do not agree, however, that the negligence alleged is not such a risk. The plaintiff alleged that the defendant’s employee had failed to properly control his horse, and that as a result, the horse “acted out.” Controlling a horse is an essential part of horseback riding. The possibility that someone will fail to exercise the proper control would seem to fall squarely within the category of dangers inherent in the sport.
The majority bases its holding in part on its interpretation of the phrase “to include.” In holding that the list prefaced by the words “to include” is meant to be exhaustive, the majority relies on a definition of the word “inclusive.” Such reliance is misplaced. The contract used the word “include” as a verb. The primary relevant definition of that word is “to place, list, or rate as a part or component of a whole or a larger group, class, or aggregate.” Webster’s Third New International [***13] Dictionary 1143 (unabridged ed. 1961) (Webster’s). “Inclusive,” however, is an adjective and its definition differs from the verb form of the word. See In re Dumaine, 135 N.H. 103, 107, 600 A.2d 127, 129 (1991). The use of the verb form of the word indicates that the listed types of negligence are “component[s] of a whole or a larger group,” Webster’s, supra, and that the list was not exhaustive.
The appropriate question, therefore, is whether the negligence alleged in this case is of the same type as those listed. The plaintiff [*173] alleges that the defendant’s employee failed to properly control his mount. This would seem to fall squarely within the type of negligence defined by the contract. That the horse causing the injury was not ridden by the plaintiff is irrelevant. The contract releases the defendant for negligence resulting from “the use of horses” and specifically from “NEGLIGENCE IN SELECTION, ADJUSTMENT OR ANY MAINTENANCE OF ANY HORSE.” (Emphasis added.) While the contract does refer to the plaintiff’s horse on a number of occasions, it also refers to horses generally and to “any” horse. This language cannot be read to restrict the defendant’s release [***14] solely to injuries caused by the plaintiff’s horse. I disagree with the majority’s reading of the exculpatory contract. Therefore, I respectfully dissent.
BROCK, C.J., joins in the dissent.
Posted: January 22, 2018 | Author: Recreation Law | Filed under: Climbing Wall, Indiana, Release (pre-injury contract not to sue) | Tags: Belay device, belayer, business name, causes of action, climber, Climbing, Climbing Wall, Equine, exculpatory clauses, Falling, genuine issue, Horse, Indoor, Indoor Climbing, Inherent Risk, Inherent Risks, material facts, matter of law, Orientation, own negligence, personal injuries, property damage, Release, Releases / Waivers, risk associated, risks inherent, Rock climbing, rope, signing, Summary judgment, top, Top Rope, training, unambiguous, undersigned, waived, Waiver |
In addition, incorrect name on the release gave plaintiff an additional argument. The LLC registered by the Indiana Secretary of State was named differently than the named party to be protected by the release.
Luck saved the defendant in this case.
Wiemer v. Hoosier Heights Indoor Climbing Facility LLC, 2017 U.S. Dist. LEXIS 149663
State: Indiana: United States District Court for the Southern District of Indiana, Indianapolis Division
Plaintiff: Alexis Wiemer
Defendant: Hoosier Heights Indoor Climbing Facility LLC,
Plaintiff Claims: Negligent Hiring and Instruction
Defendant Defenses: Release
Holding: For the Defendant
Year: 2017
Summary
Release was written broadly enough it covered negligence claims outside the normal injuries or claims from using a climbing wall. On top of that the mistakes in the release were covered by the letterhead.
Injury occurred because belayer did not know how to use the braking device.
A lot of things could have gone wrong because the climbing wall was not paying attention, but got lucky.
Facts
The plaintiff was a beginner in climbing and using climbing walls. Before climbing he signed a release and attended a facility orientation which covered training “on how to boulder, belay, and top rope climb.” The training received by the plaintiff was taught by an employee with little experience and mostly went over the defendant’s instructional books on rock climbing.
On the day of the accident, the plaintiff went to climb with a co-worker. While climbing the co-worker failed to use the belay device properly.
Incident reports indicate that Wiemer fell approximately thirty-five feet to the ground in a sitting position due to Magnus releasing a gate lever while he was belaying for Wiemer, which caused Wiemer to accelerate to the floor very quickly. As a result of the fall, he sustained severe and permanent injuries to his back, as well as impaired bladder and bowel control. Wiemer filed this action alleging Hoosier Heights was negligent in its operations. [emphasize added]
The plaintiff sued for his injuries.
Analysis: making sense of the law based on these facts.
The plaintiff’s first argument was the name of the parties to be released was not the legal name of the facility where the accident occurred. The facility was owned by a Limited Liability Company (LLC) registered with the state of Indiana as “Hoosier Heights Indoor Climbing Facility.” On the release, the name of the party to be protected was “Hoosier Heights Indoor Rock Climbing Facility.” The release name had an extra word, “rock.”
The waiver signed by Wiemer incorrectly lists the business name as ‘Hoosier Heights Indoor Rock Climbing Facility L.L.C. Hoosier Heights acknowledges that its official name is Hoosier Heights Indoor Climbing Facility LLC and that the word “Rock” does not appear in its corporate filings with the Indiana Secretary of State, although it appears on the Waiver at issue. Wiemer contends that a genuine issue of material fact exists regarding the validity of the Waiver, because the Waiver that he signed failed to name the correct entity and this inaccuracy created ambiguity as to who Wiemer contracted with.
However, the name and logo on the top of the release identified the company correctly, Hoosier Heights Indoor Climbing Facility.
Since the release was a contract, the court was required to determine if the name issue made the contract ambiguous. Ambiguous means the language of the contract could be interpreted in more than one way. The name issue was not enough to find the contract was unambiguous so that the release was not void. The name issue was minor, and the correct name was at the top of the contract.
Under these circumstances, the misidentification of Hoosier Heights does not operate to void the Waiver. Because the Waiver is unambiguous, the Court need not examine extrinsic evidence to determine the proper parties to the Waiver. Accordingly, summary judgment is denied on this basis.
The second argument the plaintiff made was the release did not cover the claimed negligence of the defendant for negligent instruction, and negligent training. Those claims are generally not defined as an inherent risk of indoor rock climbing.
The negligent training and negligent instruction claims were not based at the defendant or the belayer. Those claims were based on the employee who instructed the belayer.
Inherent is a restrictive word. See 2015 SLRA – Inherent Risk: Should the Phrase be in your Release? and Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release, and is interpreted differently by various courts. Consequently, the use of the word inherent can be dangerous in that it limits the breadth of the release.
Under Indiana’s law a release must be “specific and explicitly refer to the waiving [of] that the party’s negligence.” However, that explicit reference is not necessary for a claim that is inherent in the activity.
Nevertheless, “an exculpatory clause’s lack of a specific reference to the negligence of a defendant will not always preclude the defendant from being released from liability–such as when a plaintiff has incurred damages that are inherent in the nature of the activity.”
The plaintiff’s argument was:
Wiemer contends that his fall was due to Mellencamp’s improper training and instruction and this was not a risk that he agreed to assume. Further, he argues that improper training and instruction are not risks that are inherent in the nature of rock climbing.
The court could work around this explicit necessity because it found within the release language that covered the negligent training and instruction.
…team building, fitness training regimens and equipment purchased or rented at Hoosier Heights[,]…injuries resulting from falls, equipment failures, entanglements, falling or dropped items, or the negligence of other climbers, participants, belayers, spotters, employees, or other users of the facility…
It is the intention of the undersigned individually to exempt and relieve Hoosier Heights and its employees, … from liability for any personal injury, property damage, or wrongful death caused by negligence.
By reviewing the exact language of the release, the court was able to find language that warned of the specific issues the plaintiff claimed.
Similar to the result in Anderson, by signing the Waiver, Wiemer released Hoosier Heights from any liability resulting from its own negligence, including improper training and instruction. Further, Wiemer’s injury from falling was a risk that was inherent in the activity of rock climbing and explicitly noted in the Waiver.
The negligent training and negligent instruction claims were not based at the defendant or the belayer. Those claims were based on the employee who instructed the belayer.
As such the court found that both claims were prevented by the release the plaintiff had signed and dismissed the case.
So Now What?
This case was won by the defendant not because of proper legal planning but by luck.
If they had not used the correct letterhead for the release, the release might have been void because it named the wrong party to be protected by the release. When writing a release, you need to include the legal name of the party to be protected as well as any marketing or doing business as names.
Indiana’s requirement that the language of the release cover the exact injury the plaintiff is claiming is not new in most states. It is also a requirement that seems to be growing by the courts to favor a contract that covers the complaint.
In the past, judges would specifically point out when a claimed injury was covered in the release. Not so much as a legal requirement but to point out to the plaintiff the release covered their complaint. That prior identification seems to be growing among the states to a requirement.
In this case the release was written broadly so that the restrictions the term inherent placed in the release were covered. But for that broad language, the climbing gym might now have survived the claim.
More important writing the release wrong protecting the wrong party would have been fatal in most states.
Finally, this is another example of a belay system that is perfect, and the user failed. There are belay systems out there that don’t require user involvement, they work as long as they are corrected properly. This accident could have been avoided if the belay system worked.
What do you think? Leave a comment.
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Posted: June 26, 2017 | Author: Recreation Law | Filed under: District of Columbia, Release (pre-injury contract not to sue) | Tags: affiliates, attendance, bag, bargaining, body bag, boxing, causes of action, DC, demonstration, exculpatory clauses, exempt, fitness, Fitness Center, Gross negligence, Guests, Health club, intentional torts, intentionally, kick, Membership, own negligence, personal injury, property loss, Public Policy, Reckless, recklessness, signing, Summary judgment, unenforceable, waive, waiver provisions, Wanton, Washington DC. District of Columbia |
Plaintiff’s arguments about the release and attempt to invalidate the release by claiming gross negligence all failed.
State: District of Columbia, District of Columbia Court of Appeals
Plaintiff: Richard J. Moore
Defendant: Terrell Waller and Square 345 Limited Partnership T/A Grand Hyatt Hotel
Plaintiff Claims: negligence
Defendant Defenses: Release
Holding: for the defendant health club
Year: 2007
The plaintiff was a member of the exercise facility and had signed a release when he joined. One day while at the facility to exercise, he was asked by a kick boxing instructor to hold an Everlast body bag so the instructor could demonstrate kicks to the class. The plaintiff reluctantly did so.
The kick boxing instructor showed the plaintiff how to hold the bag. The instructor then kicked the bag five times in rapid succession. The plaintiff was out of breath after the demonstration and stated with irony that it was not hard to do.
A month after the class the plaintiff determined he had been injured from holding the bag and sued.
The defendants motioned for summary judgment with the trial court which was granted, and the plaintiff appealed.
Analysis: making sense of the law based on these facts.
The court stated that it did not often look at releases in this context. The court looked at Maryland and other states for their laws concerning releases as well as the release law in DC, which was mostly in other types of business contracts.
DC like most other states will not allow a release to stop claims for “intentional harms or for the more extreme forms of negligence, i.e., reckless, wanton, or gross [negligence].” The plaintiff did not argue the acts of the defendant were grossly negligent, but did argue the acts were reckless.
However, the court could find nothing in the pleadings that indicated the defendant’s actions were reckless. In fact, the pleadings found the instructors efforts to show the plaintiff how to hold the bag was for safety purposes and as such; safety is inconsistent with recklessness or gross negligence.
The appellate court also looked at the release itself and found it was clear and unambiguous.
…”exculpation must be spelled out with such clarity that the intent to negate the usual consequences of tortious conduct is made plain”; also recognizing that in most circumstances modern law “permit[s] a person to exculpate himself by contract from the legal consequences of his negligence”
The plaintiff also argued the release was written so broadly that it was written to cover reckless or gross negligence and as such should be thrown out. However, the court looked at the issue in a different way. Any clause in a release that attempts to limit the liability for gross negligence is not valid; however, that does not invalidate the entire release.
We disagree. “‘A better interpretation of the law is that any “term” in a contract which at-tempts to exempt a party from liability for gross negligence or wanton conduct is unenforceable, not the entire [contract].
This is the acceptable way under contract law to deal with clauses or sections that are invalid. However, many contracts have clauses that say if any clause is invalid only that clause can be thrown out; the entire contract is still valid.
DC recognizes that some releases can be void if they reach too far.
We, of course, would not enforce such a release if doing so would be against public policy. “An exculpatory clause [in a will] that excuses self-dealing [by the personal representative] or attempts to limit liability for breaches of duty committed in bad faith, intentionally, or with reckless indifference to the interest of the beneficiary, is generally considered to be against public policy.”)
However, releases found within health club agreements do not violate public policy.
However, we agree with the Maryland Court of Special Appeals and with numerous other courts which have held that it does not violate public policy to enforce exculpatory clauses contained in membership contracts of health clubs and fitness centers.
The appellate court upheld the decision of the trial court.
So Now What?
This decision does not leap with new information or ideas about releases. What is reassuring are two points. The first is releases are valid in DC. The second is when in doubt the court looked to Maryland, which has held that a release signed by a parent can stop a minor’s right to sue. See States that allow a parent to sign away a minor’s right to sue.
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Posted: June 19, 2017 | Author: Recreation Law | Filed under: Health Club, Legal Case, Release (pre-injury contract not to sue) | Tags: affiliates, attendance, bag, bargaining, body bag, boxing, causes of action, DC, demonstration, exculpatory clauses, exempt, fitness, Fitness Center, Gross negligence, Guests, Health club, intentional torts, intentionally, kick, Membership, own negligence, personal injury, property loss, Public Policy, Reckless, recklessness, signing, Summary judgment, unenforceable, waive, waiver provisions, Wanton, Washington DC. District of Columbia |
Moore v. Waller, et al., 930 A.2d 176; 2007 D.C. App. LEXIS 476
Richard J. Moore, Appellant, v. Terrell Waller and Square 345 Limited Partnership T/A Grand Hyatt Hotel, Appellees.
No. 05-CV-695
DISTRICT OF COLUMBIA COURT OF APPEALS
930 A.2d 176; 2007 D.C. App. LEXIS 476
June 20, 2006, Argued
August 2, 2007, Decided
PRIOR HISTORY: [**1]
Appeal from the Superior Court of the District of Columbia. (CA-1522-04). (Hon. Michael L. Rankin, Trial Judge).
COUNSEL: John P. Fatherree for appellant.
Terrell Waller, Pro se.
Rocco P. Porreco for appellee, Square 345 Limited Partnership.
JUDGES: Before GLICKMAN, KRAMER, and FISHER, Associate Judges.
OPINION BY: FISHER
OPINION
[*177] FISHER, Associate Judge: Appellant Richard Moore claims that he was injured on February 26, 2001, while participating in a demonstration of kick boxing at Club Fitness, which is operated by the appellee, Square 345 Limited Partnership (hereinafter Grand Hyatt). Relying on a waiver and release of liability Moore signed when he joined the fitness center, the Superior Court granted summary judgment, first for Grand Hyatt and then for Terrell Waller, the instructor who allegedly injured Moore. We affirm.
I.
Plaintiff Moore alleged that he had gone to the fitness center on February 26, 2001, to exercise. Although “he was not participating in the kick boxing classes, the instructor [*178] , defendant Waller, asked [Moore] to hold . . . a detached Everlast body bag, so [Mr.] Waller could demonstrate a kick to his class.” According to Mr. Moore, he “reluctantly agreed, saying to [Mr. Waller], ‘Not hard.’ Defendant [**2] Waller showed [Mr. Moore] how to hold the bag, braced against his body, and then kicked the bag five times, in rapid succession, with great force.” He claims that when Waller finished, “he was out of breath from the strenuous effort, and commented with obvious sarcasm and irony, ‘That wasn’t hard, was it.'” Moore states that he “immediately felt trauma to his body,” felt “stiff and achy” the next day, and consulted a physician about one month later. Mr. Moore asserts that “[h]e has been diagnosed as having torn ligaments and tendons from the trauma of the injury, and may have neurological damage, as well.” The resulting limitations on his physical activity allegedly have diminished the quality of his life in specified ways.
Mr. Moore had joined the fitness center on January 16, 2001, signing a membership agreement and initialing that portion of the agreement that purports to be a waiver and release of liability.
Article V – WAIVER AND LIABILITY
Section 1. The Member hereby acknowledges that attendance at or use of the Club or participation in any of the Club’s activities or programs by such Member, including without limitation, the use of the Club’s equipment and facilities, . . . exercises [**3] (including the use of the weights, cardiovascular equipment, and apparatus designed for exercising), [and] selection of exercise programs, methods, and types of equipment, . . . could cause injury to the Member or damage to the Member’s personal property. As a material consideration for the Club to enter into this Agreement, to grant membership privileges hereunder and to permit the Member and the Member’s guests to use the Club and its facilities, the Member, on its own behalf and on behalf of the Member’s guests, agrees to assume any and all liabilities associated with the personal injury, death, property loss or other damages which may result from or arise out of attendance at or use of the Club or participation in any of the Club’s programs or activities, notwithstanding any consultation on any exercise programs which may be provided by employees of the Club.
By signing this Agreement, the Member understands that the foregoing waiver of liability on its behalf and on the behalf of the Member’s guests will apply to any and all claims against the Club and/or its owners, shareholders, officers, directors, employees, agents or affiliates . . . for any such claims, demands, personal [**4] injuries, costs, property loss or other damages resulting from or arising out of any of foregoing risks at the Club, the condominium or the associated premises.
The Member hereby, on behalf of itself and the Member’s heirs, executors, administrators, guests and assigns, fully and forever releases and discharges the Club and the Club affiliates, and each of them, from any and all claims, damages, demands, rights of action or causes of action, present or future, known or unknown, anticipated or unanticipated resulting from or arising out of the attendance at or use of the Club or their participation in any of the Club’s activities or programs by such Member, including those which arise out of the negligence of the Club and/or the Club and the Club affiliates from any and all liability for any loss, or theft of, or damage to personal property, including, without limitation, automobiles and the contents of lockers.
[*179] THE MEMBER, BY INITIALING BELOW, ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS WAIVER AND RELEASE AND FULLY UNDERSTANDS THAT IT IS A WAIVER AND RELEASE OF LIABILITY, AND ASSUMES THE RESPONSIBILITY TO INFORM HIS/HER GUESTS OF THE PROVISIONS OF THIS AGREEMENT.
If effective, [**5] this provision waives and releases not only claims against the Club but also claims against its “employees [and] agents.” 1
1 We assume for purposes of analysis that the Grand Hyatt is responsible for the conduct of Mr. Waller at issue here, but we need not determine whether he was an employee or an independent contractor.
Ruling on Grand Hyatt’s motion for summary judgment, the trial court concluded:
The Waiver and Liability section of the contract . . . expresses a full and complete release of all liability for personal injury occurring in the fitness center. Moore signed an acknowledgment indicating that [he] had read and understood that he was releasing Grand Hyatt from all liability for personal injuries that he might sustain. Furthermore, there is no allegation of fraud or overreaching in the amended complaint. In the circumstances, the court finds that the waiver and release is valid and enforceable and is a complete defense for Grand Hyatt in this action.
The court later held “that the terms of the waiver . . . apply equally to defendant Terrell Waller….”
II.
This court has not often addressed the validity of exculpatory clauses in contracts. We have enforced them, however. For [**6] example, “[i]t is well settled in this jurisdiction that a provision in a bailment contract limiting the bailee’s liability will be upheld in the absence of gross negligence, willful act, or fraud.” Houston v. Security Storage Co., 474 A.2d 143, 144 (D.C. 1984). Accord, Julius Garfinckel & Co. v. Firemen’s Insurance Co., 288 A.2d 662, 665 (D.C. 1972) (“gross negligence or willful misconduct”); Manhattan Co. v. Goldberg, 38 A.2d 172, 174 (D.C. 1944) (“a bailee may limit his liability except for gross negligence”). We recently considered such a clause contained in a home inspection contract and concluded that it would be sufficient to waive or limit liability for negligence. Carleton v. Winter, 901 A.2d 174, 181-82 (D.C. 2006). However, after surveying “leading authorities” and cases from other jurisdictions, we recognized that “courts have not generally enforced exculpatory clauses to the extent that they limited a party’s liability for gross negligence, recklessness or intentional torts.” Id. at 181. See also Wolf v. Ford, 335 Md. 525, 644 A.2d 522, 525 (Md. 1994) ( [HN1] “a party will not be permitted to excuse its liability for intentional harms or for the more extreme forms of negligence, i.e., reckless, [**7] wanton, or gross”); Seigneur v. National Fitness Institute, Inc., 132 Md. App. 271, 752 A.2d 631, 638 (Md. Ct. Spec. App. 2000) (exculpatory clause will not be enforced “when the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton, or gross negligence”). In Carleton, the court remanded for further proceedings to determine whether the conduct of the defendants “was not just simple negligence, but rather gross negligence.” 901 A.2d at 182.
As Moore’s counsel conceded at oral argument, he does not claim that Waller intentionally or purposefully injured [*180] him. The complaint does allege reckless conduct, however, 2 and he argued to the trial court, as he does to us, that the fitness center could not exempt itself from liability for reckless or wanton behavior or gross negligence. Nevertheless, the defendants had moved for summary judgment, and [HN2] “[m]ere conclusory allegations on the part of the non-moving party are insufficient to stave off the entry of summary judgment.” Musa v. Continental Insurance Co., 644 A.2d 999, 1002 (D.C. 1994); see also Super. Ct. Civ. R. 56 (e) (“the . . . response, by affidavits or as otherwise provided in this Rule, must set forth specific [**8] facts showing that there is a genuine issue for trial”). “‘[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'” Brown v. George Washington Univ., 802 A.2d 382, 385 (D.C. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). “‘The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].'” LaPrade v. Rosinsky, 882 A.2d 192, 196 (D.C. 2005) (quoting Liberty Lobby, 477 U.S. at 252).
2 In his second amended complaint, Moore alleged that “defendant Waller recklessly disregarded [his] duty of due care [and] acted with deliberate indifference to the likelihood that his action would injure the plaintiff. Defendant Waller’s reckless action was the direct and proximate cause of plaintiff’s injuries.” He also alleged that the Grand Hyatt was responsible for Waller’s actions.
Nothing Moore presented in opposition to summary judgment would be sufficient to prove gross negligence or reckless conduct. Indeed, in one of his affidavits Mr. Moore stated that “as I was shown by defendant [**9] Waller exactly how to hold the body bag while he demonstrated his kick(s), the purpose of his directions as communicated to me as to how to hold the bag were plainly for safety.” Such concern for safety is inconsistent with recklessness or gross negligence. See generally In re Romansky, 825 A.2d 311, 316 (D.C. 2003) (defining “recklessness”); District of Columbia v. Walker, 689 A.2d 40, 44 (D.C. 1997) (defining “gross negligence” for purposes of D.C. Code § 2-412 (2001) (formerly D.C.Code § 1-1212 (1981)). Moreover, Moore did not allege that defendant Waller kicked an unprotected portion of his body. Nor did he proffer expert testimony suggesting that the demonstration was so hazardous that it was reckless to undertake it, even with the protection of the Everlast body bag.
Because there is no viable claim for gross negligence, recklessness, or an intentional tort, we turn to the question of whether this particular contractual provision is sufficient to bar claims for negligence. 3 Although this is a suit for personal [*181] injury, not merely for economic damage, the same principles of law apply. See Wright v. Sony Pictures Entertainment, Inc., 394 F. Supp. 2d 27, 34 (D.D.C. 2005) (“by voluntarily [**10] signing the Contestant Release Form, plaintiff waived his right to bring any claims for negligently caused personal injury”; applying District of Columbia law). This court has not previously considered the effect of an exculpatory clause in a membership agreement with a health club or fitness center, but many jurisdictions have done so. After surveying the legal landscape, the Maryland Court of Special Appeals concluded that most courts hold “that [HN3] health clubs, in their membership agreements, may limit their liability for future negligence if they do so unambiguously.” Seigneur, 752 A.2d at 636. We have found the analysis in Seigneur to be very helpful.
3 Appellant’s brief explains that he “claims damages from Waller based upon negligent infliction of injury, and against Square 345 Limited Partnership based upon respondeat superior and upon apparent agency and authority, as well as negligent failure to properly select, train and supervise a person whose services were retained to provide lessons in an activity which would certainly be dangerous if not expertly and responsibly performed.” He later elaborates: “While kick boxing is an inherently dangerous activity, had the demonstration [**11] been conducted in a responsible, non-negligent way, it would not have been dangerous.” The words “strict liability” appear under the caption of the second amended complaint, but appellant has not cited any statute or regulation that purports to impose strict liability on demonstrations of kick boxing, nor has he alleged the common law elements of strict liability in tort. See Word v. Potomac Electric Power Co., 742 A.2d 452, 459 (D.C. 1999). Neither has he proffered facts which would support such a theory. In sum, the waiver is sufficient to cover any theory of liability which is supported by more than conclusory allegations.
[HN4] A fundamental requirement of any exculpatory provision is that it be clear and unambiguous. Maiatico v. Hot Shoppes, Inc., 109 U.S. App. D.C. 310, 312, 287 F.2d 349, 351 (1961) (“exculpation must be spelled out with such clarity that the intent to negate the usual consequences of tortious conduct is made plain”; also recognizing that in most circumstances modern law “permit[s] a person to exculpate himself by contract from the legal consequences of his negligence”). Cf. Adloo v. H.T. Brown Real Estate, Inc., 344 Md. 254, 686 A.2d 298, 305 (Md. 1996) (“Because it does not clearly, [**12] unequivocally, specifically, and unmistakably express the parties’ intention to exculpate the respondent from liability resulting from its own negligence, the clause is insufficient for that purpose.”). The provision at issue here meets the requirement of clarity. Article V is entitled, in capital letters, “WAIVER AND LIABILITY.” The Article ends with a prominent “box” containing a sentence typed in capital letters. Appellant Moore initialed that box, verifying that he had “carefully read this waiver and release and fully understands that it is a waiver and release of liability . . . .” By accepting the terms of membership, Moore “agree[d] to assume any and all liabilities associated with the personal injury, death, property loss or other damages which may result from or arise out of attendance at or use of the Club or participation in any of the Club’s programs or activities . . . .” He understood that this waiver of liability would “apply to any and all claims against the Club and/or its owners, shareholders, officers, directors, employees, agents or affiliates . . . for any . . . personal injuries . . . resulting from or arising out of any of [the] foregoing risks at the Club . [**13] . . .” He “release[d] and discharge[d] the Club . . . from any and all claims, damages, demands, rights of action or causes of action…, including those which arise out of the negligence of the Club . . . .” This release is conspicuous and unambiguous, and it is clearly recognizable as a release from liability. Moreover, the injuries alleged here were reasonably within the contemplation of the parties. “Because [HN5] the parties expressed a clear intention to release liability and because that release clearly included liability for negligence, that intention should be enforced.” Anderson v. McOskar Enterprises, Inc., 712 N.W.2d 796, 801 (Minn. Ct. App. 2006) (health and fitness club). 4
4 Because this waiver expressly refers to “claims . . . which arise out of the negligence of the Club,” its effect is clear. We have held, however, that it is not always necessary to use the word “negligence” in order to relieve a party of liability for such conduct. See Princemont Construction Corp. v. Baltimore & Ohio R.R. Co. 131 A.2d 877, 878 (D.C. 1957) (“the terms of an indemnity agreement may be so broad and comprehensive that although it contains no express stipulation indemnifying against a party’s [**14] own negligence, it accomplishes the same purpose”); see also Avant v. Community Hospital, 826 N.E.2d 7, 12 (Ind. Ct. App. 2005)( [HN6] “an exculpatory clause need not include the word ‘negligence’ so long as it conveys the concept specifically and explicitly through other language”).
[*182] Appellant protests that the waiver provisions are so broad that they could be construed to exempt the Club from liability for harm caused by intentional torts or by reckless or grossly negligent conduct. Because such provisions are unenforceable, he argues that the entire release is invalid. We disagree. “‘A better interpretation of the law is that [HN7] any “term” in a contract which attempts to exempt a party from liability for gross negligence or wanton conduct is unenforceable, not the entire [contract].'” Anderson, 712 N.W.2d at 801 (quoting Wolfgang v. Mid-American Motorsports, Inc., 898 F. Supp. 783, 788 (D. Kan. 1995) (which in turn quotes RESTATEMENT (SECOND) OF CONTRACTS § 195(1) (1981) (“A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy.” (emphasis added))). See Ellis v. James V. Hurson Associates, Inc., 565 A.2d 615, 617 (D.C. 1989) [**15] (“The Restatement sets forth the relevant principles. Where less than all of an agreement is unenforceable on public policy grounds, a court may nevertheless enforce the rest of the agreement ‘in favor of a party who did not engage in serious misconduct.'” (quoting RESTATEMENT (SECOND) OF CONTRACTS § 184(1) (1981))).
Nor is Article V (the waiver and release) unenforceable due to unequal bargaining power, as Mr. Moore asserts. We do not suppose that the parties in fact had equal power, but Moore does not meet the criteria for invalidating a contract on the grounds he invokes. He does not invite our attention to any evidence that he objected to the waiver provision or attempted to bargain for different terms. Nor has he shown that the contract involved a necessary service.
[HN8] Even though a contract is on a printed form and offered on a “take it or leave it” basis, those facts alone do not cause it to be an adhesion contract. There must be a showing that the parties were greatly disparate in bargaining power, that there was no opportunity for negotiation and that the services could not be obtained elsewhere.
Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 924-25 (Minn. 1982) (emphasis in [**16] original). “Health clubs do not provide essential services[,]” Shields v. Sta-Fit, Inc., 79 Wn. App. 584, 903 P.2d 525, 528 (Wash. Ct. App. 1995), and “[t]he Washington metropolitan area . . . is home to many exercise and fitness clubs.” Seigneur, 752 A.2d at 639 (rejecting argument that patron’s bargaining position was grossly disproportionate to that of the fitness club).
We, of course, would not enforce such a release if doing so would be against public policy. See Godette v. Estate of Cox, 592 A.2d 1028, 1034 (D.C. 1991) ( [HN9] “An exculpatory clause [in a will] that excuses self-dealing [by the personal representative] or attempts to limit liability for breaches of duty committed in bad faith, intentionally, or with reckless indifference to the interest of the beneficiary, is generally considered to be against public policy.”); George Washington Univ. v. Weintraub, 458 A.2d 43, 47 (D.C. 1983) (exculpatory clause in lease was ineffective to waive tenants’ rights under implied warranty of habitability); see also Wolf v. Ford, 335 Md. 525, 644 A.2d 522, 526 (Md. 1994) (public policy will not permit exculpatory agreements in certain transactions affecting the performance of a public service obligation or “so important [*183] [**17] to the public good that an exculpatory clause would be patently offensive”). However, we agree with the Maryland Court of Special Appeals and with numerous other courts which have held that it does not violate public policy to enforce exculpatory clauses contained in membership contracts of health clubs and fitness centers. Seigneur, 752 A.2d at 640-41 (and cases cited therein); see also, e.g., Schlobohm, 326 N.W.2d at 926 (“the exculpatory clause in the contract before us was not against the public interest”); Ciofalo v. Vic Tanney Gyms, Inc., 10 N.Y.2d 294, 177 N.E.2d 925, 927, 220 N.Y.S.2d 962 (N.Y. 1961) (“there is no special legal relationship and no overriding public interest which demand that this contract provision, voluntarily entered into by competent parties, should be rendered ineffectual”); Massengill v. S.M.A.R.T. Sports Medicine Clinic, P.C., 996 P.2d 1132 (Wyo. 2000). 5
5 The Supreme Court of Wisconsin refused to enforce one such clause on grounds of public policy. Atkins v. Swimwest Family Fitness Center, 2005 WI 4, 277 Wis. 2d 303, 691 N.W.2d 334 (Wis. 2005). That decision was based on several factors, however, and we do not understand the court to have announced a categorical rule. See id. at 340-42 (waiver was “overly broad [**18] and all-inclusive,” the word “negligence” was not included, the provision was not “sufficiently highlight[ed],” and there was “no opportunity to bargain”).
The trial court properly held that “the waiver and release is valid and enforceable and is a complete defense for Grand Hyatt [and Mr. Waller] in this action.” The judgment of the Superior Court is hereby
Affirmed.
Posted: June 4, 2017 | Author: Recreation Law | Filed under: New Hampshire, Release (pre-injury contract not to sue) | Tags: alarm, bargaining, bodily injury, citations omitted, conscious indifference, designees, encompass, enforceable, exculpatory, fast, genuine, inducement, instructor, lesson, machine, negligent acts, own negligence, plainly, Public Policy, Reasonable person, Release, releasing, signatory's, signing, Ski, Snow, Snowmobile, Snowmobiling, speed, Summary judgment, waiving |
Lizzol v. Brothers Property Management Corporation, Et. Al., 2016 DNH 199; 2016 U.S. Dist. LEXIS 150427
Jennifer Lizzol, Michael Lizzol, and T.G., Plaintiffs v. Brothers Property Management Corporation, Out Back Kayak, Inc., and Martin Welch, Defendants
Case No. 15-cv-100-SM
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
2016 DNH 199; 2016 U.S. Dist. LEXIS 150427
October 31, 2016, Decided
October 31, 2016, Filed
PRIOR HISTORY: Lizzol v. Bros. Prop. Mgmt. Corp., 2016 U.S. Dist. LEXIS 16863 (D.N.H., 2016)
COUNSEL: [*1] For Jennifer Lizzol, Michael Lizzol, T. G., Plaintiffs: Philip R. Waystack, Jr., Sandra L. Cabrera, LEAD ATTORNEYS, Waystack Frizzell, Colebrook, NH.
For Brothers Property Management Corporation, Out Back Kayak, Inc. OBK, Defendants: Paul B. Kleinman, Bouchard Kleinman & Wright PA (M), Manchester, NH.
For Martin Welch, Defendant: Paul B. Kleinman, LEAD ATTORNEY, Bouchard Kleinman & Wright PA (M), Manchester, NH.
JUDGES: Steven J. McAuliffe, United States District Judge.
OPINION BY: Steven J. McAuliffe
OPINION
ORDER
Jennifer Lizzol, her husband Michael, and their son, T.G., filed suit to recover damages for injuries sustained as a result of a snow machine accident that occurred during a winter vacation at the Mountain View Grand Resort & Spa, in Whitefield, New Hampshire (“Mountain View Grand”). Defendants move for summary judgment based upon a liability release and covenant not to sue executed by Jennifer and Michael before the accident. Defendants also move for summary judgment on Michael Lizzol’s and T.G’s bystander liability claim. For the reasons discussed, defendants’ motion is granted.
Standard of Review
When ruling on a motion for summary judgment, the court must “constru[e] the record in the light most favorable to the [*2] nonmoving party and resolv[e] all reasonable inferences in that party’s favor.” Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301 (1st Cir. 2014). Summary judgment is appropriate when the record reveals “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In this context, “a fact is ‘material’ if it potentially affects the outcome of the suit and a dispute over it is ‘genuine’ if the parties’ positions on the issue are supported by conflicting evidence.” Int’l Ass’n of Machinists & Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st Cir. 1996) (citations omitted). See also Nolan v. CN8, 656 F.3d 71, 76 (1st Cir. 2011). Nevertheless, if the nonmoving party’s “evidence is merely colorable, or is not significantly probative,” no genuine dispute as to a material fact has been proved, and “summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (citations omitted).
Background
Construing the record in the light most favorable to plaintiffs, and resolving all reasonable inferences in their favor, the controlling facts appear to be as follows.
The Lizzols travelled to the Mountain View Grand from Long Island, New York, on January 27, 2013, arriving in the afternoon. Prior to their arrival, Jennifer had scheduled a snowmobile lesson and tour for herself, her husband, and her son, as well as for a few of their friends, through the Mountain View Grand’s website. [*3] Defs.’ Mot. for Summary Judgment, Exh. C at p. 2. The lessons and guided tour were provided by Out Back Kayak, Inc. (“OBK”). Upon arrival at the resort, the Lizzols quickly put their luggage in their rooms, and then left to participate in the snowmobile activity, including a lesson and tour. Id.
The Lizzols were directed by the hotel activities desk to a small building on the grounds, where they met a Mountain View Grand employee, who told them to quickly pick out helmets and sign a two-page document that bore the following heading:
Snow Machine Tour
ACKNOWLEDGEMENT OF RISKS AND HAZARDS
COVENANT NOT TO SUE
WAIVER AND RELEASE OF LIABILITY
(the “Release”). The Lizzols felt rushed during the process, see, e.g., Defs.’ Mot. for Summary Judgment, Exh. C. at p. 3, but both Jennifer and Michael had an opportunity to review the Release, and each signed and initialed it. (Jennifer executed the release on behalf of her minor son, T.G.). The Release includes the following language:
I . . . hereby voluntarily agree to release, waive, discharge, hold harmless, defend and indemnify BPMC, the field operator, the event promoter, the owners of premises used to conduct the snowmobile activity, their owners, [*4] agents, officers and employees from any and all claims, actions or losses for bodily injury, property damage, wrongful death or injury, loss of services or otherwise which may arise out of my use of eques[trian] or other equipment or my participation in any BPMC activity. I specifically understand that I am giving up any rights that I may have by releasing, discharging and waiving any claims or actions presently or in the future for the negligent acts or other conduct by the owners, agents, officers, designees or employees of BPMC.
Defs.’ Mot. for Summary Judgment, Exh. A, p. 1. The Release includes five lettered paragraphs that provide tour participants with a designated space in which to place his or her initials, thereby confirming that he or she understands and acknowledges the following:
(A) that he or she is physically fit to participate in the activity;
(B) that participation in the activity may result in “bodily injury, disease, strains, fractures, partial and/or total paralysis, eye injury, dental injury, blindness, . . . cold weather injuries, heart attack, asthma, vehicle injuries, mental duress, death or other ailments that could cause serious disability;”
(C) that “[t]hese risks and dangers [*5] [of bodily injury] may be caused by the negligence of the owners, employees, officers or agents of the Mountain View Grand and/or the negligence of the participants . . . ;”
(D) that by participating “in these activities and/or use of equipment, [the participant] . . . assume[s] all risks and dangers and all responsibility for any loss and/or damages, whether caused in whole or in part by the negligence or other conduct of the owners, agents, officers, designees, employees of BPMC, or by any other person[;]” and
(E) that the participant “understand[s] that [he or she is] undertaking this snowmobiling activity at [his or her] own risk, freely and voluntarily without any inducement[.]”
Id. Jennifer did not initial Paragraph B or Paragraph D, and Michael did not initial Paragraph B.
After signing the Release and obtaining their helmets, the Lizzols met their tour instructor, OBK employee Martin Welch, and his assistant, Jennifer Welch. The Lizzols had no snow machine experience. Welch provided a very brief introduction to and instruction regarding operation of the snow machines. He explained how to accelerate, brake, and turn. He told them that the tour would never travel faster than 20 miles per hour. Welch then [*6] assisted the tour members with their snowmobile selections, and the tour began.
Jennifer and Michael rode on a two-person snow machine, with Jennifer operating the vehicle. They were directly behind Welch in the line of snowmobiles. Their son, T.G., rode by himself and was farther back in the line. Welch drove rather quickly during the tour, and far exceeded the self-imposed 20 miles per hour speed limitation he had announced earlier. Jennifer did not keep pace, and, as Welch increased his speed during the second half of the tour, Jennifer lost sight of him. Jennifer attempted to follow Welch’s tracks in the snow, but, in doing so, lost control of the snowmobile, which left the path and flipped over. Jennifer, Michael, and the snow machine fell down a steep embankment that was approximately seventy-five feet high.
Both Jennifer and Michael suffered physical injuries, but Jennifer’s were particularly severe. She lost consciousness, had collapsed lungs, 10 broken ribs, and multiple injuries to her spine and back.
The plaintiffs later learned that other customers may have complained that Welch drove too quickly during earlier snow machine tours. After the accident, Mountain View Grand manager, [*7] Chris Diego, asked Michael if Welch had been “going too fast again.” Pls.’ Opp. to Summary Judgment, Exh. 4, p. 6.
Jennifer, Michael, and their son brought suit against Brothers Property Management Corporation (which owns and operates the Mountain View Grand), OBK, and Martin Welch, asserting claims for negligence, including negligent training and supervision, vicarious liability, bystander liability, and loss of consortium. The defendants move for summary judgment, arguing that the contractual Release is both valid and enforceable.
Discussion
Defendants argue that the scope of the Release plainly encompasses the claims at issue here because the complaint alleges that, as a result of the defendants’ negligence, they were injured while participating in the snow machine lesson and tour activity. Plaintiffs disagree.
New Hampshire law generally prohibits exculpatory contracts. McGrath v. SNH Development, Inc., 158 N.H. 540, 542, 969 A.2d 392 (2009). But, there are exceptions. Exculpatory contracts are enforceable if: “(1) they do not violate public policy; (2) the plaintiff understood the import of the agreement or a reasonable person in [plaintiff’s] position would have understood the import of the agreement; and (3) the plaintiff’s claims fall within the contemplation [*8] of the parties when they executed the contract.” Id. at 542 (quoting Dean v. MacDonald, 147 N.H. 263, 266-67, 786 A.2d 834 (2008)).
A. The Scope of the Release
Plaintiffs argue that the Release is not enforceable because they did not understand it to encompass claims for negligent instruction, or negligent guidance on the snow machine tour, and a reasonable person in their position would not understand the Release to bar such claims. They say that the content, structure, and organization of the Release – which plaintiffs contend is verbose, employs obfuscating language, and uses confusing sentence structure – disguised any intent to relieve the defendants of liability for their own negligence related to instruction or guidance along the trail. They point out that the words “instruction,” “lesson” and “guide” are terms that do not appear in the Release. Rather, the Release focuses on terms like “services,” “use of equipment,” and “participation in activities.” Altogether, they say, the impression is given that the Release applies only to injuries inherent to snow machine activity and the use of snow machine equipment, but not to harm resulting from an instructor’s or guide’s failure to act with reasonable care.
The parties’ differing subjective understandings [*9] of the Release’s intent is of limited relevance to the controlling analysis, however, since courts must “judge the intent of the parties by objective criteria rather than the unmanifested states of mind of the parties.” Dean, 147 N.H. at 267 (citing Lake v. Sullivan, 145 N.H. 713, 715, 766 A.2d 708 (2001) and Barnes v. New Hampshire Karting Ass’n, Inc., 128 N.H. 102, 107, 509 A.2d 151 (1986)). Under applicable New Hampshire law, courts examine the language of a release and “give the language used by the parties its common meaning and give the contract itself the meaning that would be attached to it by a reasonable person.” McGrath, 158 N.H. at 545 (internal quotations omitted) (quoting Dean, 147 N.H. at 267). “As long as the language of the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence, the agreement will be upheld.” Id. (internal quotations omitted) (quoting Dean, 147 N.H. at 267). However, a defendant “will not be released from liability when the language of the contract raises any doubt as to whether the plaintiff has agreed to assume the risk of a defendant’s negligence.” Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 414, 807 A.2d 1274 (2002) (citations omitted).
The language used in the Release at issue here is broad in reach, detailed, and clear. A reasonable person would be hard pressed to avoid recognizing the significance and effect of the words used. The Release [*10] plainly purports to release Mountain View Grand employees and agents of all liability for their own negligence, or the negligence of others (e.g. other snowmobile activity participants), related to the snow machine instruction and tour (equipment and services). The Release repeatedly references waiving the negligence of MVG’s employees, officers and agents. For example, after warning the signatory of the serious risks of injury associated with participation in the snow machine tour, including bodily injury and death, the Release explains that those risks could be caused by “the negligence of the owners, employees or agents of the Mountain View Grand.” Defs.’ Mot. for Summary Judgment, Exh. A. The Release then states that the signatory agrees to “assume all risks and dangers and all responsibility for any loss and/or damages whether caused in whole or in part by the negligence . . . of the owners, agents, officers, designees, employees of BPMC.” Id. The Release further provides: “I specifically understand that I am giving up any rights that I may have by releasing, discharging and waiving any claims or actions . . . for the negligent acts or other conduct by the owners, agents, officers, [*11] designees or employees of BPMC.” Id.
The language of the Release unarguably applies to claims or suits based on the negligence of Mountain View Grand owners, employees, officers or agents. The Release does not qualify or limit the “negligence” being released in any way, nor is the Release ambiguous in that regard. References in the Release to “participation in [the] activity” also make clear that claims arising from the releasees’ negligence associated with the described activity are being waived.
The Lizzols participated in an activity that consisted of a snow machine lesson and a snow machine tour. Plaintiffs’ claim that they were injured because defendants negligently conducted both the snow machine lesson and the tour. Their negligence claims, then, necessarily arise directly from their participation in the activity (the snow machine lesson and tour). That the Release does not include terms like “instruction,” “lesson” or “guide” is not dispositive: “[T]he parties need not have contemplated the precise occurrence that resulted in the plaintiff’s injuries, and may adopt language that covers a broad range of accidents.” McGrath, 158 N.H. at 545 (internal citations omitted) (citing Barnes, 128 N.H. at 107). So, attempting to carve out [*12] discrete acts of negligence from the Release is futile if, as here, those discrete acts are associated with the conduct of the snow machine instruction and tour activity.
A reasonable person “would have contemplated that the agreements released the defendants from any negligence, not just from negligence inherent” in snowmobiling. McGrath, 158 N.H. at 547.
B. The Release encompasses the negligence claims against OBK
Plaintiffs further argue that the Release failed to place them on notice that they were releasing OBK from liability, since OBK is not a named party to the exculpatory contract, and is not mentioned by name. Relying on Porter v. Dartmouth College, No. 07-cv-28-PB, 2009 U.S. Dist. LEXIS 90516, 2009 WL 3227831 (D.N.H. Sept. 30, 2009), plaintiffs note that the Release repeatedly makes reference to the Mountain View Grand and its equipment, but does not mention OBK or its instructors. Therefore, they say, a reasonable person would not understand that the Release also purported to absolve OBK from liability for its own negligence.
“An exculpatory contract need not specifically identify the defendant by name.” Porter, 2009 U.S. Dist. LEXIS 90516, 2009 WL 3227831, at *3 (citing Dean, 147 N.H. at 270). “However, the contract must at least provide a functional identification of the parties being released.” Id. Here, the Release reads in relevant part:
I . [*13] . . voluntarily agree to release . . . BPMC, the field operator, the event promoter, the owners of premises used to conduct the snowmobile activity, their owners, agents, officers and employees from any and all claims, actions or losses for bodily injury, . . . wrongful death or injury, loss of services or otherwise which may arise out of my use of [equestrian] or other equipment or my participation in any BPMC activity. I specifically understand that I am giving up any rights that I may have by releasing, discharging and waiving any claims or actions . . . for the negligent acts or other conduct by the owners, agents, officers, designees or employees of BPMC.
Defs.’ Mot. for Summary Judgment, Exh. A (emphasis supplied).
Defendants point out that OBK, and Welch individually, are covered by the Release because they are both “agents” of BPMC, and they acted as the referenced “field operator” for the snow machine tour. Indeed, plaintiffs specifically alleged the existence of an agency relationship between BPMC and OBK in their Complaint. See, e.g., Compl. ¶ 48 (“Mountain View Grand controlled in whole or in part the activities engaged in by Out Back Kayak and/or its employees and is vicariously [*14] liable for the negligent actions of the snow mobile tour guides committed while engaged in the scope of employment.”). The asserted agency relationship is an essential element of plaintiffs’ vicarious liability claim. Defendants readily agree that OBK and Welch were agents of BPMC. For reasons satisfactory to the parties, they do not dispute OBK’s or Welch’s status as agents of BPMC. As BPMC’s agent, OBK and Welch are plainly covered by the Release.
Moreover, plaintiffs’ reliance on Porter is unhelpful. In Porter, the plaintiff, an undergraduate student at Dartmouth College, was fatally injured while participating in a class that included ski lessons, at a facility owned, operated, and maintained by Dartmouth. 2009 U.S. Dist. LEXIS 90516, 2009 WL 3227831, at *1. Her estate filed suit, asserting claims for negligence and wrongful death. Id. Dartmouth argued that the claims were barred by a release agreement plaintiff signed before renting ski equipment for the class. 2009 U.S. Dist. LEXIS 90516, [WL] at *2. The release in Porter, which had been drafted by Solomon (the ski and bindings manufacturer), did not mention Dartmouth by name, and repeatedly emphasized and referred only to ski equipment being rented by the student. See 2009 U.S. Dist. LEXIS 90516, [WL] at *3. Based on those distinguishing facts, the court concluded [*15] that the release failed to place the “equipment renter on even functional notice that Dartmouth was in any way a party” to the release agreement. Id.
Unlike the release at issue in Porter, the Release here makes evident that it pertains not just to the furnishing and use of equipment associated with the snow machine activity, but also to the furnishing of services associated with that activity. The clearest example is found in the first paragraph of the Release, which provides: “In consideration of Brothers Property Management Corporation . . . furnishing services and equipment to enable me to participate in the Snow Machine tour (snowmobiling), I acknowledge and agree as follows.” Defs.’ Mot. for Summary Judgment, Exh. A (emphasis added). Indeed, nearly every time the Release references the signatory’s use of equipment, the Release also references the signatory’s participation in the snow machine lesson and tour. See id. Such references objectively manifest the parties’ intent that the Release encompass all claims based upon the negligent provision of services – including services provided by Mountain View Grand’s agent, OBK — that related to plaintiffs’ participation in the snow machine [*16] tour activity. While not identified by name, OBK and Welch were functionally identified as benefitting from the Release, when acting as agents of Mountain View Grand.
C. Jennifer’s failure to initial certain paragraphs of the Release does not preclude its enforcement.
Plaintiffs next argue that, even if the Release does encompass the claims at issue, it is still not enforceable against Jennifer, because she failed to initial paragraphs B and D of the Release. Plaintiffs characterize the lettered paragraphs as “several distinct exculpatory clauses” that they were required to agree to separately, and which, as structured, give the impression that “the participant might agree to certain terms, but not others.” Pls.’ Mem. in Opp. to Mot. for Summary Judgment at p. 18. Because Jennifer did not initial two of the contract’s paragraphs, plaintiffs say, those paragraphs are not enforceable against her. At the very least, plaintiffs continue, Jennifer’s failure to initial those paragraphs gives rise to disputed issues of material fact regarding her intent to be bound by those paragraphs, and whether there was a “meeting of the minds” with respect to releasing defendants from liability for their [*17] own negligence. Id.
In response, defendants point out that the final paragraph of the Release reads:
I have read the above paragraphs and fully understand their content. I understand that this is a Release of Liability, which will legally prevent me or any other person from filing suit and making any other claims for damages in the event of personal injury, death or property damage.
Defs.’ Mot. for Summary Judgment, Exh. A. Defendants argue that the final paragraph clearly and explicitly incorporates the terms of paragraphs B and D, and therefore plaintiffs’ argument is unavailing.
The final paragraph of the Release is unambiguous. By signing the Release, Jennifer acknowledged that she had read the entire agreement and agreed to its terms; all of its terms. Cf. Serna v. Lafayette Nordic Vill., Inc., No. 14-CV-049-JD, 2015 U.S. Dist. LEXIS 92669, 2015 WL 4366250, at *3 (D.N.H. July 16, 2015) (finding that plaintiff’s failure to sign a release on the back of a form did not bar enforcement, where plaintiff had signed the front of the agreement following a statement acknowledging that she had read the agreement on the back of the form concerning the release of liability, and agreed to its terms); see also Gannett v. Merchants Mut. Ins. Co., 131 N.H. 266, 269-70, 552 A.2d 99 (1988) (“The plaintiff argues, however, that she is not bound by the [*18] condition in the release, as she never returned the release to Merchants. The return of the release, however, is irrelevant, as it was the acceptance of a check offered on the condition that it constitute payment in full, rather than the signing of the release, which bound [plaintiff]. It is also irrelevant whether she actually read the release, when the release clearly and unambiguously stated the condition, and when [plaintiff] had the opportunity to read it before cashing the check.”). Here, Jennifer acknowledged having read the entire release and objectively manifested her agreement, after which she accepted the services to be provided only on condition that a full release first be given.
The parties do not cite New Hampshire authorities directly on point, nor has the court found any, but it appears that the Tenth Circuit addressed a nearly identical issue in Elsken v. Network Multi-Family Security Corp, 49 F.3d 1470 (10th Cir. 1995). In Elsken, the plaintiff entered into a services agreement with a security corporation to provide a 24-hour alarm system. Id. at 1471. The agreement contained a limitation of liability clause, on the same page as a space provided for a party to initial. Id. at 1473. The plaintiff signed the agreement, but failed to initial the line next to the [*19] limitation of liability clause. Plaintiff there also signed the agreement below a provision “articulating a presumption that the agreement was properly executed,” which read:
Resident acknowledges that resident has read and understands all of this resident agreement including the terms and conditions on this side and the reverse side, particularly Paragraph 3.0 Limitation of Liability and agrees to the amounts set forth herein.
Id. at 1473. The plaintiff was subsequently fatally stabbed in her apartment. Her estate filed suit against the security alarm company, asserting claims for breach of contract, negligence, and breach of warranties based on the alarm company’s failure to properly respond to an alarm. Plaintiffs argued that the limitation of liability clause was not effective because plaintiff did not initial the line provided for that purpose, and, therefore, had not objectively manifested her agreement to the waiver provision. Id. at 1472-73.
The court of appeals found that plaintiff’s failure to initial the line provided did not preclude summary judgment, since plaintiff had signed “directly below a statement of acceptance of the contract that explicitly incorporates the provisions on the reverse side [*20] of the page.” Id. at 1474. The court determined that, “[b]ased upon a plain reading of the contract,” plaintiff agreed to the contract in its entirety as written. Id. So too, here. Jennifer’s signature directly follows a paragraph that references the liability waiver clauses defendants seek to enforce.
Finally, plaintiffs point to no evidence in the record that might support a finding that Jennifer’s failure to initial paragraphs B and D was in any way motivated by an objection to or non-acceptance of either of those terms. Nor do they point to evidence in the record that would support a finding that Jennifer ever expressed any objection to the terms of paragraphs B and D before executing the agreement. Indeed, the relevant evidence of record suggests that Jennifer’s failure to initial paragraphs B and D was not the product of a conscious decision. See Defs.’ Mot. for Summary Judgment, Exh. C, p. 4 (Q: “Do you have any explanation for why A, C, and E were initialed, but not B and D?” Jennifer Lizzol: “No.” . . . Q: “Was there a conscious decision on your part not to initial B and D?” Jennifer Lizzol: “No.”)
Jennifer Lizzol’s failure to initial paragraphs B and D of the Release does not render the Release [*21] or those paragraphs unenforceable against her. The same general analysis applies to Michael Lizzol’s failure to initial Paragraph B of the Release.
D. The Release does not violate public policy.
Plaintiffs argue that the Release contravenes public policy, because its enforcement would relieve an instructor from liability for his own negligent instruction. Plaintiffs contend that because the instructor/guide holds a position of authority over the conduct of the snow machine tour, the instructor/guide is uniquely positioned to ensure that the tour is conducted in a reasonably safe manner. So, plaintiffs say, releasing an instructor of his or her obligation to exercise reasonable care will result in that instructor failing to make a good faith effort to carry out his duties, which, they say, is what happened here. That contravenes public policy, they argue, because it will surely impede public safety.
The argument, while creative, avoids the public policy analysis required under New Hampshire law. “A defendant seeking to avoid liability must show that the exculpatory agreement does not contravene public policy; i.e., that no special relationship existed between the parties and that there [*22] was no other disparity in bargaining power.” Barnes, 128 N.H. at 106. “‘A special relationship exists when “the defendant is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service.'” Serna v. Lafayette Nordic Vill., Inc., 2015 U.S. Dist. LEXIS 92669, 2015 WL 4366250, at *2 (quoting Barnes, 128 N.H. at 106). Additionally, a release may be against public policy if, among other things, “it is injurious to the interests of the public, violates some public statute, or tends to interfere with the public welfare or safety.” Serna, 2015 U.S. Dist. LEXIS 92669, 2015 WL 4366250, at *2 (citing McGrath, 158 N.H. at 543).
Plaintiffs do not contend that a “special relationship” existed between the parties, as that term is used in the liability waiver context. Nor could they. While the Mountain View Grand is an inn, the Release does “not pertain to the usual activities of running an inn,” but instead to the Mountain View Grand’s facilitation of collateral outdoor recreation activities. Serna v. Lafayette Nordic Vill., Inc., 2015 U.S. Dist. LEXIS 92669, 2015 WL 4366250, at *2. And snowmobiling (like skating, Serna, id., and snowboarding, McGrath, 158 N.H. at 544) constitutes recreational activity, not “an activity ‘of such great importance or necessity to the public that it creates a special relationship.'” Serna, 2015 U.S. Dist. LEXIS 92669, 2015 WL 4366250, at *2 (quoting McGrath, 158 N.H. at 544).
“Where there is a disparity in bargaining power, the plaintiff may not be deemed to have freely chosen to enter into the contract.” McGrath, 158 N.H. at 544 (citing Barnes, 128 N.H. at 107). But, “there [is] no [*23] substantial disparity in bargaining power among the parties, despite the fact that [plaintiffs were] required to sign the release in order to” participate in the snow machine lesson and tour. Barnes, 128 N.H. at 108. Here, the plaintiffs were “under no physical or economic compulsion to sign the release,” and “[s]ince the defendants’ service is not an essential one, the defendants had no advantage of bargaining strength” over the plaintiffs or others who sought to participate in the snowmobile lesson and tour. Barnes, 128 N.H. at 108.
The Release does not violate public policy.
E. The plaintiffs have not sufficiently established fraud in the inducement.
Finally, plaintiffs argue that the Release is unenforceable because they were fraudulently induced to enter into the agreement. Plaintiffs assert that defendants had prior knowledge that Welch generally drove too quickly when conducting snow machine tours, and, notwithstanding that knowledge, failed (negligently) to take reasonable steps to ensure that Welch conducted the tours safely. Plaintiffs further contend that they were induced to sign the Release based upon defendants’ false assurances that the lesson and tour would be conducted in a safe manner, with adequate instruction, and at [*24] a safe speed. Relying on those assurances, plaintiffs signed the Release. Plaintiffs argue that, at the very least, whether the defendants made assurances (and omissions) regarding the nature of the snow machine tour with conscious indifference to the truth, and whether the plaintiffs justifiably relied upon those statements when signing the Release, are disputed issues of material fact precluding summary judgment.
“Under New Hampshire law, fraud in the inducement is a valid defense to a contract action and can be raised to void a contract.” Bryant v. Liberty Mut. Grp., Inc., No. 11-CV-217-SM, 2013 U.S. Dist. LEXIS 76713, 2013 WL 2403483, at *9 (D.N.H. May 31, 2013) (citing Nashua Trust Co. v. Weisman, 122 N.H. 397, 400, 445 A.2d 1101 (1982)). As the parties seeking to invalidate the Release on fraudulent inducement grounds, plaintiffs bear a substantial burden: they “must establish that the other party made a representation with knowledge of its falsity or with conscious indifference to its truth with the intention to cause another to rely upon it. In addition, the party seeking to prove fraud must demonstrate justifiable reliance.” Trefethen v. Liberty Mut. Grp., Inc., No. 11-CV-225-SM, 2013 U.S. Dist. LEXIS 76753, 2013 WL 2403314, at *7 (D.N.H. May 31, 2013)(quoting Van Der Stok v. Van Voorhees, 151 N.H. 679, 682, 866 A.2d 972 (2005)) (additional citations omitted).
Plaintiffs rely on Van Der Stok v. Van Voorhees, but that decision offers little support. That case arose [*25] out of a transaction for the sale of real estate. The plaintiff represented that defendant-purchaser would be able to build on the property, but did not disclose that his own earlier application to the zoning board for a permit to build on the property had been denied. After the closing, defendant went to the town offices to inquire about the property, and first learned that plaintiff’s earlier permit application had been denied. Defendant stopped payment on the check given at closing to cover the purchase price. The plaintiff subsequently filed an action, and defendant raised fraud in the inducement as a defense to plaintiff’s claims. Plaintiff argued the defendant could not show reasonable reliance on his purported misrepresentation, because the purchase and sale agreement provided, “Seller makes no representations as to land use law or regulations.” Id. at 682.
The New Hampshire Supreme Court rejected that argument for two reasons. First, the court was unconvinced that the disclaimer “would put a reasonable person on notice that he could not rely upon the specific representation made . . . that the particular lot he was buying was a buildable lot.” Id. at 683. Moreover, the plaintiff had “made a representation [*26] with knowledge of its falsity or with conscious indifference to the truth with the intention to cause another to rely upon it.” Id. (quoting Snierson v. Scruton, 145 N.H. 73, 77, 761 A.2d 1046 (2000)). Such “positive fraud,” the court stated, “vitiates every thing.” Id. (quoting Jones v. Emery, 40 N.H. 348, 350 (1860)).
This case is distinguishable from Van Der Stok because the Lizzols have not shown what representation defendant(s) allegedly made “with knowledge of its falsity or with conscious indifference to its truth with the intention to cause another to rely upon it.” Id. In support of their assertion that defendants knew (or believed) that Walsh was likely to conduct their particular tour in an unsafe manner, plaintiffs point to the following: (1) “[u]pon information and belief, there had been complaints from customers that OBK’s tour guides, specifically Martin Welch, had driven unreasonably fast while conducting tours; (2) after the incident, the MVG manager asked Michael if Welch had been “driving too fast again.”
Admissibility of that evidence is doubtful, and it is plainly insufficient to support a finding that defendants knew that plaintiffs’ lesson and tour would be conducted in a negligent or actionably unsafe manner or were recklessly indifferent to that likelihood. And [*27] plaintiffs have identified no particular representation made by defendants, with the intention to induce plaintiffs to rely upon it, and, upon which they justifiably relied, that either proved to be false or the product of reckless indifference to the truth. The only statement in the record to which they point (Welch’s statement that he would not drive the snow machines faster than 20 miles per hour) occurred after plaintiffs signed the Release. The record is also utterly silent with respect to whether speed in excess of 20 mph is considered dangerous or negligent when conducting a snowmobile tour, or whether “too fast” in the past equates to the speed driven by the guide on plaintiffs’ tour, or even what “too fast” might mean in the context of a snowmobile tour that included novices.
Because plaintiffs have not produced sufficient evidence from which a finder of fact could conclude that the defendants knowingly made fraudulent representations to them, they have not established that a genuine issue of fact exists with respect to whether their execution of the Release was fraudulently induced, and is therefore ineffective.
The Release is valid and enforceable, and it encompasses the plaintiffs’ [*28] bystander liability claim as well as their negligence claims.
Conclusion
For the foregoing reasons, and for those argued in the defendants’ memoranda, the motion for summary judgment (document no. 23) is necessarily granted under controlling New Hampshire law. The Release at issue here is not ambiguous. It unmistakably released the defendants from any liability relating to their negligence, and that of their employees and agents. Neither qualifying language nor any other provision in, nor the structure of the Release, obscured the defendants’ intent to be relieved of all liability for their own negligence. A reasonable person would have understood that the Release relieved the defendants of all liability for injuries caused by their negligence. The Clerk of Court shall enter judgment for defendants and close the case.
SO ORDERED.
/s/ Steven J. McAuliffe
Steven J. McAuliffe
United States District Judge
October 31, 2016
Posted: September 26, 2011 | Author: Recreation Law | 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 |
Lloyd 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
Recreation Law 