Proof of negligence requires more than an accident and injuries. A Spectator at a rodeo needed proof of an improperly maintained gate.Posted: July 14, 2014
Spectators are business invitees, which are owed a high degree of care and never sign a release. Any event, sport, race or contest, the greatest chance of a lawsuit winning comes from those watching.
State: Arkansas Supreme Court
Plaintiff: Melonie Mahan as Next and Best Friend of Shawn Mahan
Defendant: Keith Hall, d/b/a Keith Hall Rodeo
Plaintiff Claims: negligence
Defendant Defenses: no negligence
Holding: for the defendant
The injured minor paid to attend a rodeo put on by the defendant at the local fairgrounds. After finding their seat, the minor and a friend went to get a drink. They then walked around looking at the event. A horse bucked it’s rider off, circled the inside of the arena then broke through the gate where the two youth were standing injuring them. The plaintiff also argued that their view of the horse coming at them was blocked by the rodeo announcer.
The mother of the injured youth sued on behalf of herself and her son. The fairground was sued and settled out of court. The rodeo was put on by the defendant Keith Hall Rodeo. The court directed a verdict for the defendant finding the plaintiff had not proven their case. No evidence was presented that the defendant Rodeo was negligent.
A directed verdict is a decision by the court that one party has completely failed to prove their case, and the other party must win. Directed verdicts can be granted at any time during a trial or after the jury has rendered its verdict. “A motion for directed verdict may only be granted if there is no substantial evidence to support a jury verdict.” Directed verdicts are rare.
Summary of the case
The injured youth was a business invitee which the defendant owed a “duty to use reasonable care to prevent injuries” to him. The plaintiff argued that the fact the horse got through the gate was proof the gate was not secure. However, proof of an injury is not proof of negligence.
The trial court agreed, finding that while Ms. Mahan had proven an accident and had shown where it had occurred, she had not shown any breach of duty on the part of Mr. Hall. It is from the trial court’s granting of Mr. Hall’s motion for a directed verdict that Shawn appeals.
The court defined negligence as:
…the failure to do something which a reasonably careful person would do; a negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner.
However, the plaintiff was not able to present any testimony or proof that the gate was not maintained in a reasonably safe condition. “…the fact that a[n] injury, collision or accident occurred is not of itself evidence of negligence or fault on the part of anyone.”
The Supreme Court upheld the directed verdict of the trial court.
So Now What?
Two important points can be found in this decision. The first is just because there is an injury does not mean there is a lawsuit. The defendant must have done something or not done something to create liability.
The second is the identification of a very large group of potential plaintiffs. If you host/put on/conduct events/contests/races or other activities were spectators are present, anything goes wrong injuring a spectator you might be liable. Spectators are owed a high degree of care, based on the state, and you are probably required to keep them safe. Spectators don’t sign releases and if they are viewing the activity in an area where you have allowed them to stand, then assumption of the risk is probably not available as a defense.
What do you think? Leave a comment.
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Mahan v. Keith Hall, d/b/a Keith Hall Rodeo, 320 Ark. 473; 897 S.W.2d 571; 1995 Ark. LEXIS 296; 68 A.L.R.5th 813Posted: July 14, 2014
Melonie Mahan, and Melonie Mahan As Next and Best Friend of Shawn Mahan, Appellants, v. Keith Hall, d/b/a Keith Hall Rodeo, Appellee
320 Ark. 473; 897 S.W.2d 571; 1995 Ark. LEXIS 296; 68 A.L.R.5th 813
May 15, 1995, Opinion Delivered
May 15, 1995, filed
1. APPEAL & ERROR — REVIEW OF DIRECTED VERDICT — WHEN A DIRECTED VERDICT SHOULD BE GRANTED. — Where the appellant challenged the trial court’s decision to direct a verdict in favor of the appellee, the supreme court reviewed the evidence in a light most favorable to the appellant, the non-moving party, and gave it its highest probative value, taking into account all reasonable inferences; a motion for directed verdict may only be granted if there is no substantial evidence to support a jury verdict.
2. NEGLIGENCE — DAMAGES AND BURDEN OF PROOF — NEGLIGENCE DEFINED. — The plaintiff has the burden of proving that he sustained damages, that the defendant was negligent, and that such negligence was the cause of his damages; here, there was no question that the appellant sustained injury and resulting damages; rather, the issue was whether there was substantial evidence of the appellee’s negligence; negligence is the failure to do something which a reasonably careful person would do; a negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner.
3. APPEAL & ERROR — ASSERTION NOT SUPPORTED BY TESTIMONY AS FOUND IN THE ABSTRACT — RECORD ON APPEAL CONFINED TO THAT WHICH IS ABSTRACTED. — The appellant’s assertion that the gate was not maintained in a reasonably safe condition, unsupported by testimony or other evidence as found in the abstract, was not reached on appeal; the record on appeal is confined to that which is abstracted.
4. NEGLIGENCE — FACT THAT AN INJURY OCCURRED WAS NOT OF ITSELF EVIDENCE OF NEGLIGENCE — TRIAL COURT AFFIRMED. — The fact that a injury, collision or accident occurred was not of itself evidence of negligence or fault on the part of anyone; even though the appellants offered testimony that an accident occurred and that one of them suffered damages, they presented no evidence that the appellee was negligent; the trial court’s decision to direct a verdict in the appellee’s favor was affirmed.
COUNSEL: JOHN THROESCH, POCAHONTAS.
TOM GARNER, GLENCOE.
JUDGES: JACK HOLT, JR., Chief Justice
OPINION BY: JACK HOLT, JR.
[*474] [**571] JACK HOLT, JR., Chief Justice
This is a negligence case. The appellant, Melonie Mahan, brought suit against the appellee, Keith Hall, d/b/a Keith Hall Rodeo, and the Sharp County Fair Association, on behalf of herself and her minor son, Shawn Mahan, who was injured while attending a rodeo produced by Mr. Hall. The case was settled as to the Sharp County Fair Association, and at trial, the court directed a verdict in favor of Mr. Hall, which is the basis for Ms. Mahan’s sole point of error on appeal. As Ms. Mahan failed to prove that Mr. Hall was negligent, we affirm.
On July 8, 1992, sixteen-year-old Shawn Mahan attended a rodeo in Sharp County which was produced by the appellee, Keith Hall, d/b/a Keith Hall Rodeo. Shawn and a friend, Derrick Kildow, went to watch another friend ride in the rodeo, which was located on property owned by the Sharp County Fair Association. While Shawn and Derrick [***2] were standing near a gate outside the arena, but in an area open to the public, a bucking horse broke through the gate, which in turn struck Shawn, causing injuries to his face.
In a complaint against both Mr. Hall and the Sharp County Fair Association, Ms. Mahan alleged that Shawn was a business invitee of Mr. Hall and the Association, each of whom “owed him a duty to use ordinary care [**572] to prevent injuries to him.” Ms. Mahan sought damages for personal injury, both temporary and permanent, pain and suffering, mental anguish, lost wages, and compensatory damages for medical treatment. While Mr. Hall admitted in his answer that the rodeo was open to the public, he denied that he was negligent.
The case settled as to separate defendant Sharp County Fair Association, but proceeded to trial as to Mr. Hall. At trial, Shawn testified that on the night in question, he and Derrick arrived at the arena and sat down in the bleachers before going over to a concession stand to get something to drink. From the concession stand, the two left the arena and walked over to a horse trailer where saddles and rodeo items were being sold and where some smaller children were playing around. [***3] According to Shawn, he and Derrick were standing outside the arena watching a rodeo event when the horse bucked off its rider, circled the inside of the arena, then broke through the gate, injuring him. It was also Shawn’s testimony that the rodeo announcer was standing in front of the gate, approximately one foot away from where he and Derrick were standing, and that the announcer blocked his view when the horse came through the gate.
Shawn further testified that his cheekbone was crushed as a result of the accident, and that he was unable to move his mouth for approximately three months afterward. According to Shawn, he underwent surgery, and has no feeling on the left side of his face. He further stated that he had problems with his jaw, that he [*476] was suffering from frequent headaches, that he was unable to work at his job at IGA for three months, and that he was no longer able to play football. Ms. Mahan corroborated her son’s testimony regarding the extent of his injuries, adding that he was “scared to eat” for a long time after the accident, and that she had incurred medical expenses in the amount of $ 5372.35.
Derrick Kildow testified that he too was injured when [***4] the horse came through the gate, as he had to have stitches after being hit above his right eye. According to Derrick, he and Shawn did not have time to react or to get out of the way when the horse struck the gate, as the announcer was obstructing their view and did not move until the horse got to him and came through the gate.
At the close of Ms. Mahan’s case, Mr. Hall moved for directed verdict on the grounds that Ms. Mahan had failed to show that he had breached a duty of care owed to Shawn or that he was negligent. Ms. Mahan responded that Shawn had paid an admittance to get into the rodeo on the date in question, and, as such, was a business invitee of Mr. Hall, who owed him a duty of care to secure the gate and to see that he was not injured. When the trial court inquired as to the presence of any testimony indicating that Mr. Hall did not secure the gate, Ms. Mahan responded that the fact that the horse came through the gate was “in itself evidence that the gate wasn’t secure,” that Mr. Hall had been producing rodeos for several years and had knowledge of the dangerous propensities of the animals, and that the gate was not maintained in a reasonably safe condition. Mr. Hall [***5] argued that Arkansas Model Jury Instruction (Civil) 603 states that “the fact that an injury, collision or accident occurred is not of itself evidence of negligence or fault on the part of anyone.” The trial court agreed, finding that while Ms. Mahan had proved an accident and had shown where it had occurred, she had not shown any breach of duty on the part of Mr. Hall. It is from the trial court’s granting of Mr. Hall’s motion for directed verdict that Shawn appeals.
 As Ms. Mahan challenges [HN1] the trial court’s decision to direct a verdict in favor of Mr. Hall, we will review the evidence in a light most favorable to Ms. Mahan, the non-moving party, and give it its highest probative value, taking into account all [*477] reasonable inferences. Miller v. Nix, 315 Ark. 569, 868 S.W.2d 498 (1994); Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993). A motion for directed verdict may only be granted if there is no substantial evidence to support a jury verdict. Id.
 We have said that [***6] [HN2] the plaintiff has the burden of proving that he sustained damages, [**573] that the defendant was negligent, and that such negligence was the cause of his damages. Sanford v. Ziegler, 312 Ark. 524, 851 S.W.2d 418 (1993); Fuller v. Johnson, 301 Ark. 14, 781 S.W.2d 463 (1989). Here, there is no question that Shawn sustained injury and resulting damages; rather, the issue before us is whether there was substantial evidence of Mr. Hall’s negligence. See Sanford v. Ziegler, supra. [HN3] Negligence is the failure to do something which a reasonably careful person would do; a negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner. Sanford v. Ziegler, supra; White River Rural Water Dist. v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992).
 Ms. Mahan contends that because Shawn purchased a ticket to [***7] see the rodeo, he was an invitee of Mr. Hall, who, as the producer of the rodeo, owed Shawn a duty to exercise ordinary care to maintain the premises in a reasonably safe condition. See Black v. Wal-Mart Stores, Inc., 316 Ark. 418, 872 S.W.2d 56 (1994). While Ms. Mahan asserts that the gate was not maintained in a reasonably safe condition, she presented no such testimony or other evidence to prove this assertion. And while the trial court and counsel for both Ms. Mahan and Mr. Hall allude to testimony that the gate was tied or chained, we find no such testimony in the abstract. It is fundamental that the record on appeal is confined to that which is abstracted. Davis v. State, 318 Ark. 212, 885 S.W.2d 292 (1994).
 While Ms. Mahan maintains that the fact that the horse came through the gate was “in itself evidence that the gate wasn’t secure,” we agree with Mr. Hall’s assertion that “the fact that a injury, collision or accident occurred is not of itself evidence of negligence or fault on the part of anyone.” See AMI 603. Granted, Ms. Mahan, her son Shawn, and Derrick Kildow [*478] offered testimony that an accident occurred [***8] and that Shawn suffered damages, yet they simply presented no evidence that Mr. Hall was negligent. For this reason, we affirm the trial court’s decision to direct a verdict in Mr. Hall’s favor.
Appellate court sends back to trial court on issue that release did not protect against Gross Negligence, and the deceased did not have time to read the release.
I guess I knew that these contests happened. I grew up in a rural community where we had greased pig contests, but nothing like this. The plaintiff entered a contest where he went into a rodeo and stood in a white circle. There were other participants also standing in circles. A bull was released into the ring. The last person standing in a white circle won. Prize money was $50.00. The contest was called the “Ring of Fear.” The bull struck the deceased bursting his liver.
The plaintiff’s spouse sued. The deceased prior to entering the ring signed a release. The release was comprehensive but apparently had all participant signatures on one form. Allegedly, the deceased was not given any time to read the release.
Prior to the bull being released into the ring, the bull was allegedly provoked by jabbing him with a wooden object and beating sticks against the bull’s cage. (I’m guessing PETA is not big in this part of Kentucky…….)
The trial court dismissed the complaint based on the release signed by the deceased. The plaintiff appealed.
Summary of the case
The appellate court first looked at the Kentucky Farm Animals Activities Act (FAAA) KRS 247.401 through KRS 247.4029. The court found the statute was applicable to the facts in this case. The court also found that the warnings found in the act provided immunity to defendants who posted the warnings. Failure to post the warnings did not create a claim of negligence per se or strict liability as the plaintiff argued. Failing to post the warnings simply failed to provide the immunity under the statute.
The court also found that the FAAA allowed farm animal event sponsors to sue the act if they posted the warning signs.
The court found that the FAAA had no duty to reduce or eliminate the inherent risks found in farm animal activities. The court also found that act did not protect sponsors that intentionally mistreat or aggravate a farm animal. That would be the antithesis of the purpose of the act.
The court then looked at the issue of the release and stated,
While agreements to exempt future liability for either ordinary or gross negligence are not invalid per se, they are generally disfavored and are strictly construed against the parties relying upon them. [Emphasize added]
Although not a definitive statement on the issue, it appears that under Kentucky law, a release will protect a defendant against a claim of gross negligence.
Releases in Kentucky will be upheld if they meet the following tests if:
(1) it explicitly expresses an intention to exonerate by using the word “negligence;” or
(2) it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party’s own conduct; or
(3) protection against negligence is the only reasonable construction of the contract language; or
(4) the hazard experienced was clearly within the contemplation of the provision.
From a legal point, this is an extremely broad language about how a release will be interpreted by the courts.
The court then examined the release and found no language the court could interpret that could be used to say the release was going to stop a gross negligence claim. The court also found that intentionally mistreating the bull would “at the very least constitute gross negligence.”
The court followed up by stating that infuriating a bull would constitute willful of wanton conduct which “a party may not contract away any liability through a release.”
Finally, the court looked at a laundry list of additional issues raised by the plaintiff:
..that Appellees should have inquired as to the abilities of the participants to participate in the Ring of Fear. Finally, Susan contends that Charles did not have an opportunity to read the release prior to signing it.
The court stated that those were all factual issues to be resolved by a trier of fact.
So Now What?
Although the issue that a release in Kentucky may protect against gross negligence is great as well as the broad language that can be used in a release in Kentucky, the last two issues mentioned by the court allow numerous ways to void releases in Kentucky and place a burden upon the business or program operating in Kentucky and using a release.
That is requiring an outfitter to see if a guest has the sufficient skills, ability and desire to undertake the activities and making sure the person signing a release has sufficient time to read the release.
Solving the problems of the Defendant
First, I would have raised an assumption of risk argument, although I am not sure of the status of A/R in Kentucky. However, I believe that it is pretty obvious that you can get gored by a bull in a ring. The deceased and the plaintiff were going to the event for a rodeo so it had to have been obvious, to some extent.
Second by having separate releases rather than one sign-up sheet, the argument that the deceased did not have time to read the release could have been diffused if not eliminated. If each person has a sheet of paper, then there is no rush to get all the signatures on one sheet of paper.
Still to be resolved
The issue that the defendant did not enquire as to the ability of the participant to participate in the Ring of Fire is an open-ended opportunity for every lawsuit in Kentucky to go to trial.
How are you going to determine the requirements for a participant to undertake an activity? No matter what system, test or determination you make, you did not do a good job if someone is hurt or injured on your trip. Nor can you use medical information to determine if someone can participate because unless you are a physician, that would require diagnosis which you cannot do.
The only solution you can come up with to create a system so the participants can self-determine if they are able to participate. Show a video or create a checklist. Make sure your release states that the person has watched the video, seen your website and reviewed the checklist and understands it is their responsibility to determine if they are able to participate in the activity.
This could be a nightmare in Kentucky.
What do you think? Leave a comment.
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Davis, v. 3 Bar F Rodeo, 2007 Ky. App. LEXIS 423
Susan Davis, Individually and as Administratrix of the Estate of Charles A. Davis, Deceased, Appellants v. 3 Bar F Rodeo; Marcus Fannin; Bobby Ray Fannin; Grant County Fair, Inc., Appellees
2007 Ky. App. LEXIS 423
November 2, 2007, Rendered
PLEASE REFER TO THE KENTUCKY RULES REGARDING FINALITY OF OPINIONS. TO BE PUBLISHED. [UNLESS OTHERWISE ORDERED BY THE KENTUCKY SUPREME COURT, OPINIONS DESIGNATED “TO BE PUBLISHED” BY THE COURT OF APPEALS ARE NOT TO BE PUBLISHED IF DISCRETIONARY REVIEW IS PENDING, IF DISCRETIONARY REVIEW IS GRANTED, OR IF ORDERED NOT TO BE PUBLISHED BY THE COURT WHEN DENYING THE MOTION FOR DISCRETIONARY REVIEW OR GRANTING WITHDRAWAL OF THE MOTION.]
SUBSEQUENT HISTORY: As Modified May 2, 2008.
Rehearing denied by Davis v. 3 Bar F. Rodeo, 2008 Ky. App. LEXIS 266 (Ky. Ct. App., May 2, 2008)
Review denied and ordered not published by Grant County Fair, Inc. v. Davis, 2008 Ky. LEXIS 249 (Ky., Oct. 15, 2008)
PRIOR HISTORY: [*1]
APPEAL FROM GRANT CIRCUIT COURT. HONORABLE STEPHEN L. BATES, JUDGE. ACTION NO. 05-CI-00427.
DISPOSITION: REVERSING AND REMANDING.
COUNSEL: BRIEF AND ORAL ARGUMENT FOR APPELLANTS: Jerry M. Miniard, Florence, Kentucky.
BRIEF AND ORAL ARGUMENT FOR APPELLEE, GRANT COUNTY FAIR, INC.: Thomas R. Nienaber, Covington, Kentucky
BRIEFS FILED FOR APPELLEES, 3 BAR F RODEO, MARCUS FANNIN, AND BOBBY RAY FANNIN: Steven N. Howe, Dry Ridge, Kentucky.
JUDGES: BEFORE: LAMBERT, TAYLOR AND WINE, JUDGES. ALL CONCUR.
OPINION BY: WINE
REVERSING AND REMANDING
WINE, JUDGE: Susan Davis (“Susan”), individually and as the Administratrix of the Estate of Charles A. Davis (“Charles”), deceased, appeals a summary judgment order entered by the Grant Circuit Court dismissing her claims against the Grant County Fair, Inc. (“GCF”), 3 Bar F Rodeo (“3-BFR”), Marcus Fannin (“M. Fannin”) and Bobby Ray Fannin (“B. Fannin”) (“Appellees” collectively) for the injuries and wrongful death of her husband, Charles, which occurred on September 25, 2004. Specifically, Susan argues the trial court erred by denying her motion for summary judgment based upon the Appellees’ alleged failure to give her husband the mandatory warning pursuant to KRS 247.4027, which resulted in Charles’s severe internal bodily injuries [*2] which ultimately led to his death. For the reasons stated herein, we remand this case as summary judgment was not appropriate.
Appellant, GCF, is a non-profit corporation whose primary function is to own, maintain, and operate the Grant County Fairgrounds. 3-BFR is an unincorporated association comprised of M. Fannin and B. Fannin. 3-BFR’s primary function is to conduct rodeo events for the general public. GCF entered into an agreement with 3-BFR, M. Fannin and B. Fannin whereby 3-BFR would hold a rodeo at the fairgrounds.
On September 25, 2004, Charles and Susan attended the rodeo at the Grant County Fair. The announcer for the rodeo, Aaron Platt (“Platt”), called for participants for a game called the “Ring of Fear.” This game called for audience members to participate by entering the rodeo ring and standing in marked circles on the ground. Kenny, a bull from Ohio, was then released into the ring. The last person standing, without stepping outside of the circle, won the grand prize of $ 50.00. Charles proceeded to the ring to try his luck in the Ring of Fear. Susan alleges Kenny was angered by someone jabbing him with a wooden object and beating sticks against his cage prior to his [*3] release. Once released, Kenny proceeded to drive his head into Charles’s abdomen, lifting him off the ground. Charles made his way back into the stands where his wife Susan was seated. Unknown to Charles or anyone else, Kenny’s blow to Charles’s abdomen had caused his liver to burst and he was bleeding internally. Charles faded into temporary unconsciousness next to his wife in the stands. Charles died the next morning at the University of Cincinnati’s trauma unit. The cause of death was ruled “blunt trauma to torso” and internal bleeding.
Susan then brought a wrongful death action against GCF, 3-BFR and the Fannins, alleging that their negligence had caused her husband’s death. GCF moved for summary judgment based upon a release signed by Charles prior to his participation in the Ring of Fear. 3-BFR, M. Fannin and B. Fannin filed similar motions. After completing more discovery and taking depositions, Susan filed a cross-motion for summary judgment, asserting that the Appellees failed to properly warn of the dangers of the Ring of Fear as required by KRS 247.4027. Susan alleged the Appellees’ failure to warn was a substantial factor in causing the injuries that led to her husband’s [*4] death. The trial court granted summary judgment to the Appellees, finding that the release was sufficient to exempt them from liability in light of Hargis v. Baize, 168 S.W.3d 36 (Ky. 2005). The trial court denied Susan’s cross-motion for summary judgment. This appeal followed.
[HN1] In reviewing a motion for summary judgment, a trial court must consider all the stipulations and admissions on file. CR 56.03. “[S]ummary judgment is proper only where the movant shows that the adverse party cannot prevail under any circumstances.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991), citing Paintsville Hospital Co. v. Rose, 683 S.W.2d 255 (Ky. 1985). The standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779, 43 1 Ky. L. Summary 17 (Ky.App. 1996). There is no requirement that the appellate court defer to the trial court because factual findings are not at issue. Goldsmith v. Allied Building Components, Inc., 833 S.W.2d 378, 381, 39 7 Ky. L. Summary 24 (Ky. 1992).
Susan argues the Appellees breached their duty to warn [*5] pursuant to the Farm Animals Activities Act (“FAAA”), found in KRS 247.401 through KRS 247.4029. Specifically, [HN2] the FAAA represents a statutory plan designed to outline the duties and responsibilities of both participants and sponsors conducting animal activities. Having thoroughly read the statute, we agree with Susan that the statute applies to this case. However, KRS 247.4027(2)(a) allows for a waiver of liability if the participant signs a release waiving his right to bring an action against the farm animal event sponsor.
Susan asserts that non-compliance with the warning requirements of KRS 247.401 constitutes negligence per se and/or strict liability. We disagree. KRS Chapter 247 is generally recognized throughout the country as “Equine Activity Statutes” (“EAS”). In general, these statutes are an attempt to limit liability of persons engaging in animal activities. Therefore, [HN3] if a sponsor of an animal activity does post the suggested warnings found in KRS Chapter 247, he is granted immunity from liability if someone gets hurt. If, as in this case, the warnings are not posted, the sponsor loses the immunity and may be held responsible for the injury in accordance with other applicable [*6] law. KRS 247.4013. Therefore, EAS statutes are “immunity statutes,” not negligence per se or strict liability statutes as recognized in many of our sister states. See Anderson v. Four Seasons Equestrian Center, Inc., 852 N.E.2d 576 (Ind. 2006); Amburgey v. Sauder, 238 Mich. App. 228, 605 N.W.2d 84 (Mich. App. 1999).
[HN4] Although KRS 247.402 requires farm animal activity sponsors to warn of the inherent risks, there is no duty to reduce or eliminate the inherent risks. However, to intentionally mistreat or aggravate a farm animal would be the antithesis of this duty.
While it is clear that the Appellees did not have warning signs posted at the ring entrance, it is undisputed that Charles signed a release just prior to his participation in the Ring of Fear. Therefore, the central issue in this case is the validity of the release Charles signed. The release Charles signed states as follows:
We the undersigned hereby request permission (1) to enter the restricted area (2) to participate as a contestant, assistant, official or otherwise rodeo events (3) to compete for money, prizes, recognition or reward.
In consideration of “permissive entry” into the restricted areas, which is the area from which admission to the [*7] general public is restricted, which includes, but is not limited to the rodeo arena, chutes, pens, adjacent walkways, concessions and other appurtenances, I undersigned, my personal representatives, heirs, next of kin, spouses and assigns to hereby:
1. I release, discharge and covenant not to sue the rodeo committee, stock contractor, sponsors, arena operators or owners and each of them, their officers, agents and employees all hereafter collectively referred to as (Releases) from any and all claims and liability arising out of strict liability or ordinary negligence of Releases or any other participant which causes the undersigned injury, death, damages or property damage. I, the undersigned, jointly, severally, and in common, covenant to hold releases from any claim, judgment or expenses that may incur arising out of my activities or presence in the restricted area.
2. Understand that entry into the restricted area and/or participation in rodeo events contains danger and risks of injury or death, that conditions of the rodeo arena change from time to time and may become more hazardous, that rodeo animals are dangerous and unpredictable, and that there inherent danger in rodeo which [*8] I appreciate and voluntarily assume because I chose to do so. Each of the undersigned has observed events of this type and that I seek to participate in. I further understand that the arena surface, access ways or lack thereof, lighting or lack thereof, and weather conditions all change and pose a danger. I further understand that other contestants and participants pose a danger, but nevertheless, I voluntarily elect to accept all risks connected with the entry into restricted areas and/or participate in any rodeo events.
3. I agree that this agreement shall apply to any incident, injury, and accident death occurring on the above date and fore (sic) a period of one (1) year thereafter. All subsequent agreement and release documents signed by any of the undersigned shall amplify, shall in no way limit the provisions of the document.
4. I the undersigned agree to indemnify the Releases and each of them from loss, liability damage or costs they may incur due to the presence or participation in the described activities whether caused by the negligence of the Releases or otherwise.
WE HAVE READ THIS DOCUMENT, WE UNDERSTAND IT IS A RELEASE OF ALL CLAIMS, WE APPRECIATE AND ASSUME ALL RISKS INHERENT IN RODEO. [*9]
Charles’s signature appears below this language along with the signatures of the other participants of the Ring of Fear on September 25, 2004.
[HN5] While agreements to exempt future liability for either ordinary or gross negligence are not invalid per se, they are generally disfavored and are strictly construed against the parties relying upon them. Hargis, 168 S.W.3d at 47.
[A] preinjury release will be upheld only if (1) it explicitly expresses an intention to exonerate by using the word “negligence;” or (2) it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party’s own conduct; or (3) protection against negligence is the only reasonable construction of the contract language; or (4) the hazard experienced was clearly within the contemplation of the provision.
Id., citing 57A AM. JUR. 2d, Negligence § 53 (citations omitted). The trial court held that the release met the above requirements in Hargis and, absent genuine issues of fact as to the release, its enforceability warranted summary judgment in favor of Appellees.
We disagree with the trial court that the release form signed by Charles satisfies all of the [*10] factors in Hargis. The release uses the word “negligence.” The release does specifically and explicitly release the Appellees from liability for “any and all claims and liability arising out of strict liability or ordinary negligence of Releases [Appellees] . . . which causes the undersigned [Charles] injury . . . [or] death . . . .”
The language of the release is specific as to its purpose to exonerate the sponsors from ordinary negligence liability. The release specifically warns that rodeo events contain danger and risks of injury or death; that the conditions of the rodeo arena change and may become more hazardous; that rodeo animals are dangerous and unpredictable; and finally that anyone choosing to participate voluntarily assumes the inherent danger that exists in rodeo events. However, there is no language that releases Appellees from conduct that would constitute gross negligence. Susan contends that Appellees provoked Kenny by prodding him and beating on his cage prior to his release into the ring. The intentional provocation of the bull by Appellees to attack the participants is clearly not contemplated by the release. While the Appellees dispute the allegations of intentionally [*11] mistreating Kenny, if true, it would at the very least constitute gross negligence. The release contemplates getting into the ring with a bull and even mentions that rodeo animals are unpredictable. However, the release does not contemplate a bull that has been infuriated by the Appellees prior to its release into the ring. Such conduct could be construed as willful or wanton for which a party may not contract away any liability through a release. Hargis, supra. This material issue of fact as disputed by the parties can only be resolved by a trier of fact and is not appropriately resolved by summary judgment. If the jury determines that Appellees’ conduct was grossly negligent, the release would be unenforceable as to this conduct. Of course, under comparative negligence, the jury could also consider Charles’s own conduct in contributing to his death.
Susan also argues that the trial court was presented with a genuine issue of material fact as to whether the Appellees offered her husband protective chest gear. M. Fannin testified that the participants in the Ring of Fear on the date in question were given an opportunity to put on a protective vest before entering the rodeo ring. Conversely, [*12] Rob Wells (“Wells”), who participated on the same day as Charles, submitted an affidavit indicating that he was never offered a protective vest nor did he observe that there were protective vests available. Susan further submits that Appellees should have inquired as to the abilities of the participants to participate in the Ring of Fear. Finally, Susan contends that Charles did not have an opportunity to read the release prior to signing it. In support of this contention, Susan relies on the affidavit of Wells wherein he indicates that he did not read the release. These are all factual issues to be resolved by a trier of fact.
Accordingly, we reverse and remand this case to the Grant Circuit Court for a jury trial.