Florida Appellate court throws out release signed by student-athlete who died because release was not written according to the requirements of Florida law.
Posted: October 9, 2023 Filed under: Florida, Release (pre-injury contract not to sue), Sports | Tags: Exculpatory clause, Football, Negligence, Release, Stetson University, student athlete, Waiver Leave a commentPoorly written release that failed to stop claim by the family of a deceased scholarship athlete
Estate of Blakely v. Stetson Univ. (Fla. App. 2022)
State: Florida; Florida Court of Appeals, Fifth District
Plaintiff: THE ESTATE OF NICHOLAS ADAM BLAKELY, BY AND THROUGH MICHELLE WILSON, AS PERSONAL REPRESENTATIVE
Defendant: STETSON UNIVERSITY, INC
Plaintiff Claims:
Defendant Defenses: Release
Holding: For the Plaintiff
Year: 2022
Summary
Stetson University offered an athletic scholarship to the deceased. In return, he had to sign a release. He died during practice and his mother sued the school. The release was ineffective because it was not written correctly under Florida law.
Facts
Nicholas Blakely was a student and scholarship football player at Stetson in 2016 and 2017, his freshman and sophomore years in college. He pulled himself out of an afternoon football practice on August 28, 2017, complaining to an assistant athletic trainer that he was feeling dizzy and that his chest felt tight. The assistant athletic trainer took Blakely to the sideline, took his pulse,[1] gave him water to cool down, removed his helmet, loosened his shoulder pads, and had him stand in the shade. Trainers continued to monitor Blakely’s symptoms. However, after resting on the sideline for approximately forty to forty-five minutes, Blakely collapsed.
In addition to calling 911, Stetson employees attempted various emergency medical procedures in an unsuccessful effort to revive Blakely. Blakely was transported to the hospital, where he ultimately died.
There was record evidence that during an April 2017 practice, Blakely had complained to an assistant athletic director of chest pain. He also advised the trainer that he had experienced one or two incidents of chest pain in high school, but both of those incidents had resolved quickly. The chest pain incident of April 2017 also resolved in just a few minutes. The assistant athletic trainer did not document the April incident or otherwise do anything with the information provided by Blakely. Furthermore, when Blakely returned to school after summer break, Stetson did not have him undergo a physical examination prior to him participating on the football team for the upcoming season.
There is also record evidence that on the morning of August 28, 2017, the day Blakely died, Blakely advised the head football athletic trainer that he was not feeling well, that he had a bad cough, chest congestion, and shallow breathing. The trainer took Blakely’s temperature which was negative for fever. The trainer believed Blakely had a cold and did not refer him to the student health clinic. Blakely was permitted to continue participation in the planned activities for the day without restriction.
The defendant won the case at trial when the judge dismissed the case based on the release. The plaintiff appealed and the appellate court sent it back to the trial court.
Analysis: making sense of the law based on these facts.
Florida, like all states, has requirements for releases to be effective.
An exculpatory clause purports to deny an injured party the right to recover damages from a person negligently causing his injury. They are disfavored in the law because they relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid the injury and bear the risk of loss. Such clauses are strictly construed against the party seeking to be relieved of liability. Thus, exculpatory clauses are enforceable only where and to the extent that the intention to be relieved from liability is made clear and unequivocal. The wording must be so clear and understandable that an ordinary and knowledgeable person will know what he is contracting away.
In this case, the release did not use the word release. That alone is not enough to make the release ineffective according to the court, but it is a major factor in looking at the document as a whole.
Although Florida has case law that states the word “negligence” is not needed in a release for the release to be effective. However, here the word negligence was not used and the court found nothing similar, as needed was used. Consequently, the court found the release was ineffective. The issue is was the release unambiguous.
In the present case, the exculpatory clause did not expressly inform Blakely that by executing the document at issue, he would be contracting away his right to sue Stetson for Stetson’s own negligence. Although this omission does not, standing alone, render the exculpatory clause unenforceable, it is a factor for a court to consider in determining whether the exculpatory clause is clear and unambiguous.
Here the court found two other problems with the release. The release had specific requirements the signor must fulfill in order for his scholarship to be provided. Combining multiple different terms or purposes into a release always provides the court with a way to say the release is not valid.
First, immediately preceding the exculpatory clause, Blakely was advised that it was important that he comply with Stetson’s medical staff’s instructions regarding, inter alia, conditioning and treatment and, indeed, was required to obey such instructions.
The court found this combination was fatal in this case.
As was stated in Plancher, this type of language, when coupled with a clause that does not expressly state that the athlete would be waiving a negligence action, could reasonably lead the athlete to believe that the university “would be supervising his training and instructing him properly (non-negligently), and that he was only being asked to sign the exculpatory clause to cover injuries inherent in the sport.
Since the language in the release had specific instructions on how the signor was supposed to act and rules to obey, the court found that narrowed the scope of the release to only those risks inherent in the sport.
The second issue the court found was the language in the release was limiting. In this case, the language said the signor only bound the signor, not the signor’s family. The term “for myself” was used rather than a broader term that would encompass more people.
Second, the final two sentences of the releases state that the releases serve as a release “for myself,” not “by” myself. Specifically, these sentences read, in relevant part: “[T]he terms hereof shall serve as a release and assumption of risk for myself . . .” and “The terms hereof shall serve as a complete release and waiver of liability for myself, . . . .” (emphasis added).
In Florida, as in all other states, contracts are construed against the person making the contract. That means that the person who creates the contract cannot win any argument that it was made properly, the terms will be examined in a way that the writer of the agreement loses that argument.
Those three factors, combined were enough to void the release.
As we have previously observed, exculpatory clauses are to be strictly construed against the party seeking to be relieved of liability. Here, Stetson’s Athletic Participation Release of Liability and Waiver of Liability form: 1) failed to expressly inform Blakely that he was contracting away his right to sue Stetson for Stetson’s own negligence, 2) used language that could reasonably lead one to believe that the university would be supervising and training properly so that he was only being asked to sign the exculpatory clause to cover injuries inherent in a sport, and 3) used language suggesting that the terms of the release were for Blakely’s benefit. The combination of these factors supports a determination that the exculpatory clause was not clear and unambiguous. As a result, we conclude that the exculpatory clause relied upon by Stetson is unenforceable and that the trial court erred in granting summary judgment in favor of Stetson.
There was also a cross-appeal, an appeal issue filed by the party who did not start the appeal, in this case, the university, that the university could not be held liable for gross negligence if the plaintiff amended its complaint to add gross negligence.
Under Florida law, a defendant can only be held liable for gross negligence if the plaintiff proves “the defendant was guilty of intentional misconduct or gross negligence.”
A Florida statute defines gross negligence.
Section 768.72(2)(b) defines “gross negligence” as conduct “so reckless or wanting in care that it can constitute a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.”
After reviewing the claims of the plaintiff, the court found the claims argued were not backed up by facts and the plaintiff could not prove gross negligence.
There is record evidence that supports some of those allegations. However, taking the record evidence and proffered evidence in the light most favorable to Wilson, we conclude that Wilson has not met the threshold necessary to state a claim for punitive damages.
The Florida Supreme Court has placed a heavy burden on a party attempting to prove the other party was grossly negligent. Basically, the party accused of gross negligence has shown no deference to human life or acted in a way that the consequences were almost such that an injury would occur.
The Florida Supreme Court has stated that: “[t]he character of negligence necessary to sustain an award of punitive damages must be of a ‘gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.
Here the plaintiff could not prove and had not proven that level of carelessness on the part of the university.
So Now What?
It appears if the release had been written correctly and ONLY the language of a release in the agreement, the release would have stopped the lawsuit of the survivors.
The first issue you see all the time. Those are the releases that are argued at the appellate courts and recorded and then appear to be heard. You must hire an attorney to write your release who understands release law and the issues you face.
The second issue you also see all the time. Releases include language that the person will obey the rules or actually list the rules. Even found more frequently are releases where the signor is giving up more than just the right to sue, such as a photo release or a medical release in one document.
Releases are rising to the level of insurance policies. The body of law surrounding them and controlling them is separate and distinct from the law of contracts. Like an insurance policy, a release is a contract, but the relationship between the parties and the rights of the consumer creates burdens on the business offering the release that are much greater than a regular contract.
For more articles about releases under Florida law see:
Man sues kayak rental company after falling in Tampa Bay, allegedly catching flesh-eating bacteria
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, 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 manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
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Estate of Blakely v. Stetson Univ. (Fla. App. 2022)
Posted: October 9, 2023 Filed under: Activity / Sport / Recreation, Florida, Release (pre-injury contract not to sue) | Tags: College, Football, Football Scholarship, Gross negligence, Release, Scholarship Athlete, Stetson Univerity, student athlete, University, Waiver, Wrongful Death Leave a commentTo Read an Analysis of this decision see
Florida Appellate court throws out release signed by student-athlete who died because release was not written according to the requirements of Florida law.
Estate of Blakely v. Stetson Univ. (Fla. App. 2022)
THE ESTATE OF NICHOLAS ADAM BLAKELY, BY AND THROUGH MICHELLE WILSON, AS PERSONAL REPRESENTATIVE, Appellant,
v.
STETSON UNIVERSITY, INC., Appellee.
No. 5D21-2547
Florida Court of Appeals, Fifth District
December 30, 2022
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
Appeal from the Circuit Court for Volusia County LT Case No. 2018-12178-CIDL, Kathryn D. Weston, Judge.
A. Lance Reins, Rainey C. Booth, Jr., and Joanna Greber Dettloff, of Mendes, Reins & Wilander, PLLC, Tampa, and Christopher Klemawesch, and Jason M. Melton, of Whittel & Melton, LLC, Spring Hill, and Romero Pearson, of Pearson Law Group, LLC, Lawrenceville, GA, for Appellant. Michael R. D’Lugo, and Richard E. Ramsey, of Wicker Smith O’Hara McCoy & Ford, P.A., Orlando, for Appellee.
EVANDER, J.
In this wrongful death case, the Estate of Nicholas Adam Blakely, by and through Michelle Wilson, as personal representative (“Wilson”), timely appeals a final judgment entered after the trial court granted summary judgment for the defendant, Stetson University, Inc. (“Stetson”). The trial court found that two identical releases signed by Blakely in order to play football for Stetson were sufficiently clear to bar claims brought against Stetson arising from Blakely’s cardiac death after participating in a football practice.
On appeal, Wilson raises two issues. First, she contends that the language in the releases was insufficient to be enforceable as a matter of law. Second, she argues that genuine issues of material fact exist concerning the scope of the release and whether Stetson’s alleged tortious conduct fell within that scope. We find merit to Wilson’s first argument and, accordingly, we reverse the final judgment entered in favor of Stetson. Because we find the releases were unenforceable, we find it unnecessary to address Wilson’s second argument.
On cross-appeal, Stetson argues that if this Court reverses the final judgment, it should also reverse the trial court’s order allowing Wilson to add a claim for punitive damages. We find merit to the cross-appeal, and accordingly, we reverse that order as well.
Nicholas Blakely was a student and scholarship football player at Stetson in 2016 and 2017, his freshman and sophomore years in college. He pulled himself out of an afternoon football practice on August 28, 2017, complaining to an assistant athletic trainer that he was feeling dizzy and that his chest felt tight. The assistant athletic trainer took Blakely to the sideline, took his pulse,[1] gave him water to cool down, removed his helmet, loosened his shoulder pads, and had him stand in the shade. Trainers continued to monitor Blakely’s symptoms. However, after resting on the sideline for approximately forty to forty-five minutes, Blakely collapsed.
In addition to calling 911, Stetson employees attempted various emergency medical procedures in an unsuccessful effort to revive Blakely. Blakely was transported to the hospital, where he ultimately died.
There was record evidence that during an April 2017 practice, Blakely had complained to an assistant athletic director of chest pain. He also advised the trainer that he had experienced one or two incidents of chest pain in high school, but both of those incidents had resolved quickly. The chest pain incident of April 2017 also resolved in just a few minutes. The assistant athletic trainer did not document the April incident or otherwise do anything with the information provided by Blakely. Furthermore, when Blakely returned to school after summer break, Stetson did not have him undergo a physical examination prior to him participating on the football team for the upcoming season.
There is also record evidence that on the morning of August 28, 2017, the day Blakely died, Blakely advised the head football athletic trainer that he was not feeling well, that he had a bad cough, chest congestion, and shallow breathing. The trainer took Blakely’s temperature which was negative for fever. The trainer believed Blakely had a cold and did not refer him to the student health clinic. Blakely was permitted to continue participation in the planned activities for the day without restriction.
The operative amended complaint included counts for negligence and breach of fiduciary duty. In its answer, Stetson raised as an affirmative defense that Blakely had signed two identical releases prior to his participation on the football team in 2016 and 2017, which barred the claims brought against Stetson. The releases signed by Blakely read as follows:
STETSON UNIVERSITY DEPARTMENT OF ATHLETICS Athletic Participation Release of Liability and Waiver of Liability
Please Read Carefully
I am aware that playing or practicing to play/participate in any sport can be a dangerous activity involving many risks of injury.
I understand that the dangers and risks of playing or participating/practicing may include, but are not limited to: death, serious neck injury, serious spinal cord injury, which may result in complete or partial paralysis, brain damage, serious injury to virtually all internal organs, serious injury to virtually all bones, joints, ligaments, muscles, tendons, and other aspects of the muscular-skeletal system, serious injury or eye impairment, and serious injury to other aspects of my body, general health and well-being. I understand that the dangers and risks of playing or participating/practicing in the Stetson University Athletic Department programs may result not only In serious injury, but in a serious impairment of my future abilities to earn a living, to engage in other business, social, and recreational activities, and generally to enjoy life.
Because of the dangers and risks involved in participating in intercollegiate athletics, I recognize the importance of following the Coaches and Sports Medicine staff instructions regarding playing techniques, conditioning, rehabilitation/ treatment recommendations and team rules, etc., and agree to obey such instructions.
In consideration of Stetson University permitting me to play/participate for Stetson University intercollegiate athletics in all activities related to the team, including, but not limited to: trying out, practicing, playing/participating or team travel in that sport, I hereby assume all risks associated with participation and agree to hold Stetson University, it’s [sic] trustees, administration, coaches, athletic trainers and athletic training interns from any and all liability, actions, causes of actions, debts, claims or demands of any kind or nature which may arise by or in connection with my participation in any activities related to the Stetson University athletic program. The terms hereof shall serve as a release and assumption of risk for myself, my heirs, estate, executor, administrator, assignees and for all members of my family.
The terms hereof shall serve as a complete release and waiver of liability for myself, my heirs, estate, executor, administrator assignees, and for all members of my family.
(emphasis added).
In its motion for summary judgment, Stetson argued that the releases clearly and unambiguously released Stetson from any and all liability arising from Blakely’s participation in Stetson football activities. In response, Wilson argued, inter alia, that the releases did not mention negligence and contained contradictory and ambiguous provisions rendering the releases unenforceable. In granting Stetson’s motion, the trial court found that the releases were “clear and understandable so that an ordinary and knowledgeable person would know what is being contracted away” and “would be clear to even someone who is not an adult that executing them would release all claims.”
We review orders granting summary judgment de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 60 So.2d 126, 130 (Fla. 2000). Here, we are called upon to determine the enforceability of the exculpatory provisions set forth in Stetson’s Athletic Participation Release of Liability and Waiver of Liability.
“An exculpatory clause purports to deny an injured party the right to recover damages from a person negligently causing his injury. They are disfavored in the law because they relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid the injury and bear the risk of loss. Such clauses are strictly construed against the party seeking to be relieved of liability. Thus, exculpatory clauses are enforceable only where and to the extent that the intention to be relieved from liability is made clear and unequivocal. The wording must be so clear and understandable that an ordinary and knowledgeable person will know what he is contracting away.” UCF Athletics Ass’n, v. Plancher, 121 So.3d 1097, 1101 (Fla. 5th DCA 2013) (internal citations and quotations omitted), approved in part, quashed in part, 175 So.3d 724 (Fla. 2015).
In the present case, the exculpatory clause did not expressly inform Blakely that by executing the document at issue, he would be contracting away his right to sue Stetson for Stetson’s own negligence. Although this omission does not, standing alone, render the exculpatory clause unenforceable, see Sanislo v. Give Kids the World, Inc., 157 So.3d 256 (Fla. 2015), it is a factor for a court to consider in determining whether the exculpatory clause is clear and unambiguous. Plancher, 121 So.2d at 1101, 1102; see also Sanislo, 157 So.3d at 271 (“Despite our conclusion [that an exculpatory clause can be effective to bar a negligence action despite the absence of expressed language referring to the release of the defendant for its own negligence], we stress that our holding is not intended to render general language in a release of liability per se effective to bar negligence actions.”).[2]
In addition, there are at least two provisions which, combined with Stetson’s failure to expressly inform Blakely that he was contracting away his right to sue Stetson for Stetson’s negligence, render the exculpatory provision unclear and ambiguous. First, immediately preceding the exculpatory clause, Blakely was advised that it was important that he comply with Stetson’s medical staff’s instructions regarding, inter alia, conditioning and treatment and, indeed, was required to obey such instructions. As was stated in Plancher, this type of language, when coupled with a clause that does not expressly state that the athlete would be waiving a negligence action, could reasonably lead the athlete to believe that the university “would be supervising his training and instructing him properly (non-negligently), and that he was only being asked to sign the exculpatory clause to cover injuries inherent in the sport.” Plancher, 121 So.3d at 1102; see also Murphy v. Young Men’s Christian Ass’n of Lake Wales, Inc., 974 So.2d 565, 568- 69 (Fla. 2d DCA 2008) (holding where waiver expressly releasing YMCA from any claims based on YMCA’s negligence also included provision suggesting that YMCA would take “every reasonable precaution” against accidents, waiver was unenforceable because a reasonable reader might be led to believe that waiver of liability only extends to claims for injuries that were unavoidable “even when every reasonable precaution” had been taken by YMCA; “[C]onfusion results from the juxtaposition of the ‘every reasonable precaution’ provision with the provision for the release of ‘any claims based on negligence.'”).
Second, the final two sentences of the releases state that the releases serve as a release “for myself,” not “by” myself. Specifically, these sentences read, in relevant part: “[T]he terms hereof shall serve as a release and assumption of risk for myself . . .” and “The terms hereof shall serve as a complete release and waiver of liability for myself, . . . .” (emphasis added). As Wilson observes, the word “for” is defined to mean “used to indicate the person or thing that something is sent or given to.” In other words, the use of the word “for” can suggest that the terms of the release are for the benefit of Blakely, that is, if he follows the instructions of Stetson’s athletic department personnel and causes injury to another while participating in the dangerous activity of playing football, he is released from liability.
As we have previously observed, exculpatory clauses are to be strictly construed against the party seeking to be relieved of liability. Here, Stetson’s Athletic Participation Release of Liability and Waiver of Liability form: 1) failed to expressly inform Blakely that he was contracting away his right to sue Stetson for Stetson’s own negligence, 2) used language that could reasonably lead one to believe that the university would be supervising and training properly so that he was only being asked to sign the exculpatory clause to cover injuries inherent in a sport, and 3) used language suggesting that the terms of the release were for Blakely’s benefit. The combination of these factors supports a determination that the exculpatory clause was not clear and unambiguous. As a result, we conclude that the exculpatory clause relied upon by Stetson is unenforceable and that the trial court erred in granting summary judgment in favor of Stetson.
Cross-Appeal
A trial court’s order granting or denying a motion to amend complaint to add a claim for punitive damages is reviewed de novo. Est. of Despain v. Avante Grp., Inc., 900 So.2d 637, 644 (Fla. 5th DCA 2005). The appellate court views the record evidence and the proffered evidence in the light most favorable to the plaintiffs and accepts said evidence as true for the purpose of reviewing whether a reasonable basis exists for punitive damages. Id.
A defendant may be held liable for punitive damages only if the trier of fact finds that the defendant was guilty of intentional misconduct or gross negligence. See § 768.72(2), Fla. Stat. (2017). In the instant case, Wilson did not allege that Stetson engaged in intentional misconduct but rather relied solely on allegations of gross negligence.
Section 768.72(2)(b) defines “gross negligence” as conduct “so reckless or wanting in care that it can constitute a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.”
Here, Wilson argues that punitive damages are justified because:
(1) [D]espite being directly put on notice of numerous agency guidelines and best practices to the contrary – Stetson, through its managing agents including its Director of Sports Medicine, failed to implement ECG screening of student-athletes based at least in part on the cost of implementing such screening, failed to implement any emergency action plan or policies and procedures regarding Sudden Cardiac Death, and failed to provide its athletic trainers and coaches with any specialized training dealing with Sudden Cardiac Death.
(a) . . . Stetson athletic trainers and coaches were made aware of [Blakely’s] repeated complaints of chest pain, shortness of breath, congestion, dizziness, and an “alarming” elevated heart rate that, according to a Stetson Athletic Trainer, should have been a red flag when combined with his other symptoms. But, due to the lack of policies and procedures, training, and emergency action plans at Stetson, the athletic trainers and coaches did not treat these textbook signs of cardiac distress as a cardiac emergency as they should have, resulting in [Blakely’s] death. . . .;
(2) [Stetson] actively and knowingly participated in the company’s practice of declining to implement use of ECG screening, specialized training, emergency action plans, and policies and procedures in accordance with numerous guidelines and best practices to protect student-athletes from the leading cause of unexpected deaths in NCAA Athletes and allowing its athletic trainers to train athletes in complete ignorance and disregard of Sudden Cardiac Death while knowing that such a practice was grossly negligent; and
(3) . . . Stetson’s officers, directors or managers – including its Director of Sports Medicine who was the ultimate decision-maker on all matters at issue in this case – knowingly condoned, ratified, or consented to the grossly negligent and recklessly indifferent conduct by failing to respond in any way to the threat of Sudden Cardiac Death despite being put on notice of the life threatening issue, the position of various agencies, and related best practices.
There is record evidence that supports some of those allegations. However, taking the record evidence and proffered evidence in the light most favorable to Wilson, we conclude that Wilson has not met the threshold necessary to state a claim for punitive damages. The Florida Supreme Court has stated that: “[t]he character of negligence necessary to sustain an award of punitive damages must be of a ‘gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.'” Valladares v. Bank
of Am. Corp., 197 So.3d 1, 11 (Fla. 2016) (quoting Owens-Corning
Fiberglass Corp. v. Ballard, 749 So.2d 43, 46 (Fla. 1999)). Wilson’s evidence falls short of meeting that standard. Accordingly, we conclude that the trial court erred in granting Wilson’s motion to amend complaint to add a claim for punitive damages.
REVERSED and REMANDED.
LAMBERT, CJ and HARRIS, J, concur
———
Notes:
[1] The record evidence reflects that when Blakely’s pulse was first checked, it was between 160 and 170 beats per minute. Blakely’s pulse rate started to decrease shortly thereafter.
[2] In its answer brief, Stetson argues that the Florida Supreme Court’s decision in Sanislo renders “meaningless” the absence of the words “negligent” or “negligent acts.” We reject this argument. Sanislo was a 4-3 decision, in which two of the justices in the majority concurred in result only. The other two justices in the majority joined in an opinion that concluded that the ultimate question in this case was whether the exculpatory clause, when considered in its entirety, “clearly conveys that Give Kids the World, Inc. would be released from any liability, including negligence, for damages, losses, and injuries due to transportation, food, lodging, entertainment, and photographs.” The supreme court’s decision in Sanislo affirmed this court’s position that the failure of an exculpatory clause to express the informed designee would not, in and of itself, render the clause unenforceable. Sanislo, 157 So.3d at 258.
Contrary to Stetson’s suggestion, the Sanislo decision did not expressly or implicitly overrule this court’s determination in Plancher that the failure to expressly reference that the defendant was being released for its own negligence could operate with other factors to invalidate an exculpatory clause. Furthermore, none of the seven justices suggested a belief that the absence of the words “negligent” or “negligent acts” was meaningless. To the contrary, the three dissenting justices concluded that the words were required, while the two justices in the majority who opined on the issue agreed “that it may be better practice to expressly refer to ‘negligent’ or ‘negligent acts’ in an exculpatory clause.” Sanislo, 157 So.3d at 270.
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Massachusetts accepts releases and in this case, there was no argument about the validity of the release.
Posted: May 1, 2023 Filed under: Massachusetts, Release (pre-injury contract not to sue), Sports | Tags: Athlete, Batter, College Athlete, Drills, Gross negligence, Massachusetts, Practice, recklessness, Release, softball, student athlete, Waiver Leave a commentA college softball player was struck in the head during batting practice. No negligence because a release stopped simple negligence claims and there was no proof of gross negligence.
Brandt v. Davis, 98 Mass. App. Ct. 734, 159 N.E.3d 191 (Mass. App. 2020)
State: Massachusetts: Appeals Court of Massachusetts, Suffolk
Plaintiff: Brooke A. Brandt
Defendant: Jaclyn Davis & others
Plaintiff Claims: negligence, gross negligence, and recklessness
Defendant Defenses: Release and no duty
Holding: For the Defendants
Year: 2020
Summary
Massachusetts law allows a trial court to dismiss a case when a release is used, and the pleadings do not have the facts necessary to prove reckless conduct or gross negligence on the part of the defendant.
In this case, a batter, the coaches and a university were not liable for the injuries of a player when she walked into the range of a batter.
Facts
The plaintiff played softball as a member of the Suffolk University women’s team, a National Collegiate Athletic Association Division III team. As a condition of her participation on the team, the plaintiff signed a participant waiver and release of liability form. The waiver released Suffolk University and its employees and agents from liability for any claims arising from her participation in the athletic program to the extent “permitted by the law of the Commonwealth of Massachusetts.”
On the day of the accident, the team was practicing in an indoor practice facility. The team engaged in the same general pattern of activities during practices. After warming-up, the team would leave the playing area to get their equipment, and then meet on the field. The players had to leave the playing area to get their equipment, because they hung their equipment outside the playing area on a fence. During their practices, the players would run through a series of rotating stations to develop different skills, each requiring different personal equipment. Before the players began their next station, the head coach would say “go” when she was sure everyone was in position and wearing the proper equipment.
Typically, the batting tees would be set up in batting cages, but they were not on the day of the accident. Moveable screens were available to use as protective barriers, but there was no such barrier between the tees and the field entrance on the day of the accident.
At one of the practice stations, players practiced hitting balls off tees into the netting surrounding the field. The tees were placed off to one side of an opening in the netting, which is where players would enter the area. A portable divider was placed on the opposite side of the opening to separate this station from the live hitting station. The players rotated among stations at the direction of the coaches, and were given between two and five minutes to transition before the coaching staff signaled them to start.
During the March 7, 2014, practice, when it was time for the plaintiff to rotate to the live hitting station, she left the field to retrieve her batting helmet and began jogging back with her helmet in her hand. The plaintiff testified in a deposition that she had to go retrieve her batting equipment, because her first station had been fielding. The plaintiff was “moving quickly” to get back to her station.
When the plaintiff returned to the practice area, the teammate was practicing hitting at the “last tee near the door. [The teammate] was the last to get to [her] tee because of the additional time [she] spent practicing [her] footwork.” The teammate was a left-handed batter, and she chose the tee nearest to the door so that the right-handed players in the station would not be within her swinging radius.
In her deposition, the plaintiff testified that she saw that the teammate had a bat in her hand at the tee station and was preparing to bat. The teammate’s back was to the plaintiff when the plaintiff jogged back on the field. The plaintiff did not know whether the teammate could see her because the teammate’s batting helmet limited her peripheral vision. The plaintiff testified that she saw the teammate’s face, but could not say whether that was when she was leaving the field or upon reentering it. She “didn’t feel like [she] was going to get hit” when she ran behind the teammate.
The plaintiff testified that she yelled, “Wait.” However, she could not remember when she said wait or even whether she said it out loud. She admitted that it was possible that she “said wait only in [her] own head.”
The teammate testified in a deposition that she did not begin swinging until instructed to do so by her coaches, and an assistant coach testified that the players were already swinging before the accident. The teammate stated that she “always look[ed] around … before … every single swing.” She did not see the plaintiff.
After the teammate hit the ball off the tee, the teammate’s swing hit the plaintiff in the back of the head. As a result, the plaintiff suffered a concussion and required four stitches at a hospital. She was released from the emergency department the same evening. Because the plaintiff and the teammate were best friends, the teammate stayed with the plaintiff in her dormitory room the night of the accident. A few days later, however, it became evident that the plaintiff was suffering long-term effects from the accident, including difficulty reading.
Analysis: making sense of the law based on these facts.
The court only looked at whether the summary judgment was correct. The trial court found the plaintiff had not pled or proven any claims that would rise to the level of gross negligence or recklessness. The release was presumed valid and was enforced eliminating any basic claims.
The appellate court first looked at the duty owed by participants in athletic events. That means participants must refrain from reckless conduct. “As is well established, “participants in an athletic event owe a duty to other participants to refrain from reckless misconduct.””
This higher level of care is required because to have a lower standard of care would create litigation anytime players interacted physically. When one engages in a sport, one must accept the level of physical contact to be higher. Failure to do so takes the fun out of the play.
The court found that this same level of care or standard also applied to practices. If the players did not practice at a high level, they would not compete at a higher level.
…the Supreme Judicial Court determined that participants in an athletic event owe each other only a duty to avoid reckless conduct. The court did so because it was “wary of imposing wide tort liability on sports participants, lest the law chill the vigor of athletic competition.”
The same reasoning applies to athletic practices. During such practices, players train to improve their competitive performance. Teammates often play against each other as though it is a game through scrimmages and other drills at practice.
The court then proceeded to exam the claims of the plaintiff that the conduct was reckless. Reckless conduct is one person knowing that their actions create a high degree of risk of physical harm and still proceeds to act.
The plaintiff has the burden to prove “the actor knows, or has reason to know … of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk.”
The court reviewed the facts and found there was no reckless conduct on the part of the teammate. The actions of the batter were such that there was no time from when she attempted to swing at the ball until when she made contact with the plaintiff to alter her actions. There was no knowledge of the high degree of physical harm because the batter did not know the plaintiff was behind her. And without that knowledge, there is no recklessness.
The final issue reviewed was whether to the coach, and the universities’ actions were grossly negligent or reckless. The plaintiff’s ordinary or simple negligence claims were barred by the release. Therefore, only the gross negligence claim remained against the university and coaches.
Massachusetts law defines gross negligence as:
“[G]ross negligence is substantially and appreciably higher in magnitude than ordinary negligence. … It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care” The ‘voluntary incurring of obvious risk’ and ‘persistence in a palpably negligent course of conduct over an appreciable period of time’ are among ‘the more common indicia of gross negligence.’ ”
“Gross negligence … is materially more want of care than constitutes simple inadvertence”
Recklessness in this context was defined as:
“[R]eckless conduct involves a degree of risk and a voluntary taking of that risk so marked that, compared to negligence, there is not just a difference in degree but also a difference in kind.”
For the coaches and thus their employer the university to be found liable, the coaches had to have known of the propensity of the batter to act reckless or with intent to harm.
“[I]n order to impose liability on a coach for the conduct of a player, there must be, at the least, evidence of ‘specific information about [the] player suggesting a propensity to engage in violent conduct, or some warning that [the] player … appeared headed toward such conduct as the game progressed.
The trial court and the appellate court found none of the facts necessary to apply either a reckless or gross negligence definition to the actions of the batter or the coaches. In fact, the court found just the opposite.
Here, there is no indication that the teammate intentionally struck the plaintiff or that the teammate had a history of reckless conduct. The plaintiff testified that she and the teammate were best friends, and that she did not think the teammate hit her on purpose.
So Now What?
In some states, releases are part of the law and are rarely challenged unless the release is poorly written. Because of that, colleges and universities are using release to stop claims by student athletes for their injuries.
However, several other courts have indicated they are not sure that releases are the way proceed fearing a release will allow the defendants not to keep their businesses as risk free as possible. It is a constantly changing legal landscape.
For other articles about student athletes see:
For other articles about Massachusetts and releases see:
Massachusetts’s Supreme Court holds that wrongful-death claims are derivative.
Poorly written release in Massachusetts stop lawsuit for falling off a horse during riding lessons.
Duty of care for a Massachusetts campground is to warn of dangerous conditions.
A federal district court in Massachusetts upholds indemnification clause in a release.
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, 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 manufactures 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 and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Brandt v. Davis, 98 Mass.App.Ct. 734, 159 N.E.3d 191 (Mass. App. 2020)
Posted: May 1, 2023 Filed under: Massachusetts, Release (pre-injury contract not to sue), Sports | Tags: Athlete, College University, Gross negligence, Massachusetts, Practice, recklessness, Release, softball, Softball Drills, student athlete, Suffolk University, Waiver Leave a commentTo Read an Analysis of this decision see Massachusetts accepts releases and in this case, there was no argument about the validity of the release.
98 Mass.App.Ct. 734
159 N.E.3d 191
Brooke A. BRANDT
v.
Jaclyn DAVIS & others.1
No. 19-P-1189
Appeals Court of Massachusetts, Suffolk..
Argued May 22, 2020.
Decided November 2, 2020.
Robert A. Curley, Jr., Braintree, for the plaintiff.
Robert B. Smith, Boston, for Jaclyn Davis & another.
Paul F. Lynch, Boston, for Meredith Ball.
Present: Wolohojian, Maldonado, & Ditkoff, JJ.
DITKOFF, J.
[98 Mass.App.Ct. 734]
The plaintiff, Brooke A. Brandt, appeals from a summary judgment dismissing her complaint against her softball teammate, Meredith Ball (teammate), and Suffolk University and her softball head coach Jaclyn Davis (collectively, the Suffolk defendants), arising out of the plaintiff’s injuries sustained during softball practice. We conclude that, like players in an athletic contest, players in an athletic practice owe a duty not to engage in reckless conduct but are not subject to suit for simple negligence. Because of a waiver signed by the plaintiff, the Suffolk defendants are liable only for gross negligence or recklessness. Concluding that the summary judgment record did not raise a triable issue that either the teammate or the Suffolk defendants engaged in reckless conduct or gross negligence, we affirm.
1. Background. The plaintiff played softball as a member of the Suffolk University women’s team, a National Collegiate Athletic Association Division III team. As a condition of her participation on the team, the plaintiff signed a participant waiver and release of liability form. The waiver released Suffolk University and its employees and agents from liability for any claims arising from her participation in the athletic program to the extent “permitted by the law of the Commonwealth of Massachusetts.”
On the day of the accident, the team was practicing in an indoor practice facility. The team engaged in the same general pattern of activities during practices. After warming-up, the team would leave the playing area to get their equipment, and then meet on the field. The players had to leave the playing area to get their equipment, because they hung their equipment outside the playing area on a fence. During their practices, the players would run through a series of rotating stations to develop different skills, each requiring different personal equipment. Before the players began their next station, the head coach would say “go” when she was sure everyone was in position and wearing the proper equipment.
Typically, the batting tees would be set up in batting cages, but they were not on the day of the accident. Moveable screens were available to use as protective barriers, but there was no such barrier between the tees and the field entrance on the day of the accident.
At one of the practice stations, players practiced hitting balls off tees into the netting surrounding the field. The tees were placed off to one side of an opening in the netting, which is where players would enter the area. A portable divider was placed on the opposite side of the opening to separate this station from the live hitting station. The players rotated among stations at the direction of the coaches, and were given between two and five minutes to transition before the coaching staff signaled them to start.
During the March 7, 2014, practice, when it was time for the plaintiff to rotate to the live hitting station, she left the field to retrieve her batting helmet and began jogging back with her helmet in her hand. The plaintiff testified in a deposition that she had to go retrieve her batting equipment, because her first station had been fielding. The plaintiff was “moving quickly” to get back to her station.
When the plaintiff returned to the practice area, the teammate was practicing hitting at the “last tee near the door. [The teammate] was the last to get to [her] tee because of the additional time [she] spent practicing [her] footwork.” The teammate was a left-handed batter, and she chose the tee nearest to the door so that the right-handed players in the station would not be within her swinging radius.
In her deposition, the plaintiff testified that she saw that the teammate had a bat in her hand at the tee station and was preparing to bat. The teammate’s back was to the plaintiff when the plaintiff jogged back on the field. The plaintiff did not know whether the teammate could see her because the teammate’s batting helmet limited her peripheral vision. The plaintiff testified that she saw the teammate’s face, but could not say whether that was when she was leaving the field or upon reentering it. She “didn’t feel like [she] was going to get hit” when she ran behind the teammate.
The plaintiff testified that she yelled, “Wait.” However, she could not remember when she said wait or even whether she said it out loud. She admitted that it was possible that she “said wait only in [her] own head.”
The teammate testified in a deposition that she did not begin swinging until instructed to do so by her coaches, and an assistant coach testified that the players were already swinging before the accident. The teammate stated that she “always look[ed] around … before … every single swing.” She did not see the plaintiff.
After the teammate hit the ball off the tee, the teammate’s swing hit the plaintiff in the back of the head. As a result, the plaintiff suffered a concussion and required four stitches at a hospital. She was released from the emergency department the same evening. Because the plaintiff and the teammate were best friends, the teammate stayed with the plaintiff in her dormitory room the night of the accident. A few days later, however, it became evident that the plaintiff was suffering long-term effects from the accident, including difficulty reading.
The plaintiff asserted claims against the teammate for negligence, gross negligence, and recklessness. The plaintiff asserted claims against the Suffolk defendants for gross negligence and recklessness. In a thoughtful decision, a Superior Court judge determined that the plaintiff needed to show recklessness on the part of the teammate to prevail. Concluding that the summary judgment record did not raise a triable issue of recklessness or gross negligence on the part of either the teammate or the Suffolk defendants, the judge granted summary judgment and dismissed the plaintiff’s complaint. This appeal followed.
2. Standard of review. “Our review of a motion judge’s decision on summary judgment is de novo, because we examine the same record and decide the same questions of law.” Boston Globe Media Partners, LLC v. Department of Criminal Justice Info. Servs., 484 Mass. 279, 286, 140 N.E.3d 923 (2020), quoting Kiribati Seafood Co. v. Dechert LLP, 478 Mass. 111, 116, 83 N.E.3d 798 (2017). “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.” Bank of N.Y. Mellon v. Morin, 96 Mass. App. Ct. 503, 506, 136 N.E.3d 396 (2019), quoting Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177, 37 N.E.3d 39 (2015). See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). “Usually, negligence and recklessness involve questions of fact left for the jury. … However, where no rational view of the evidence would permit a finding of negligence or recklessness, summary judgment is appropriate.” Borella v. Renfro, 96 Mass. App. Ct. 617, 622, 137 N.E.3d 431 (2019).
3. Claims against the teammate. a. Standard of care. As is well established, “participants in an athletic event owe a duty to other participants to refrain from reckless misconduct.” Borella, 96 Mass. App. Ct. at 622, 137 N.E.3d 431, quoting Gauvin v. Clark, 404 Mass. 450, 451, 537 N.E.2d 94 (1989). Accord Gray v. Giroux, 49 Mass. App. Ct. 436, 439, 730 N.E.2d 338 (2000) (“wilful, wanton, or reckless standard of conduct, and not ordinary negligence, is the appropriate standard of care in noncontact sports”). We must determine whether this standard, rather than the ordinary negligence standard, applies to participants in an athletic practice. “Whether a party owes a duty of care to another is a legal question, ‘determine[d] “by reference to existing social values and customs and appropriate social policy.” ‘ ” Williams v. Steward Health Care Sys., LLC, 480 Mass. 286, 290, 103 N.E.3d 1192 (2018), quoting Jupin v. Kask, 447 Mass. 141, 143, 849 N.E.2d 829 (2006). We conclude that the same level of duty — to refrain from reckless conduct — applies to athletic practices as well as to athletic contests.
In Gauvin, 404 Mass. at 454, 537 N.E.2d 94, the Supreme Judicial Court determined that participants in an athletic event owe each other only a duty to avoid reckless conduct. The court did so because it was “wary of imposing wide tort liability on sports participants, lest the law chill the vigor of athletic competition.” Id. This standard “furthers the policy that ‘[v]igorous and active participation in sporting events should not be chilled by the threat of litigation.’ ” Id., quoting Kabella v. Bouschelle, 100 N.M. 461, 465, 672 P.2d 290 (1983).
The same reasoning applies to athletic practices. During such practices, players train to improve their competitive performance. Teammates often play against each other as though it is a game through scrimmages and other drills at practice. See Gauvin, 404 Mass. at 454, 537 N.E.2d 94 (“Players, when they engage in sport, agree to undergo some physical contacts which could amount to assault and battery absent the players’ consent”). Batting practice, for example, requires focus for players to increase the strength and accuracy of their swings. If the players could not practice as vigorously as they play, they would — at best — be unprepared for the challenges of actual competition. At worst, their inability to practice vigorously would expose them to an increased risk of injury during games, especially if they competed against out-of-State teams not so constrained. See Kavanagh v. Trustees of Boston Univ., 440 Mass. 195, 205, 795 N.E.2d 1170 (2003).
We find support for this conclusion in decisions in other States. In Bowman v. McNary, 853 N.E.2d 984, 991 (Ind. Ct. App. 2006), the Indiana Court of Appeals rejected the application of ordinary negligence to an injury caused by an errant swing during a practice for a high school golf team. See id. at 992 (“the rule applies to injuries sustained by any co-participants in a sporting activity, which would include teammates injured during a practice”).2 Moreover, other jurisdictions have applied the recklessness standard for noncontact or noncompetitive athletic activities. See, e.g., Ford v. Gouin, 3 Cal. 4th 339, 345, 11 Cal.Rptr.2d 30, 834 P.2d 724 (1992) (“the general rule limiting the duty of care of a coparticipant in active sports to the avoidance of intentional and reckless misconduct, applies to participants engaged in noncompetitive but active sports activity, such as a ski boat driver towing a water-skier”); Pressler v. U, 70 Ohio App. 3d 204, 205-206, 590 N.E.2d 873 (1990) (yacht race). Accord Ritchie-Gamester v. Berkley, 461 Mich. 73, 89, 597 N.W.2d 517 (1999) (declining to apply ordinary negligence where ice skater skated backwards into plaintiff).
b. Reckless conduct. “The imposition of tort liability for reckless disregard of safety can be based on either a subjective or objective standard for evaluating knowledge of the risk of harm.” Boyd v. National R.R. Passenger Corp., 446 Mass. 540, 546, 845 N.E.2d 356 (2006). The plaintiff has the burden to prove “the actor knows, or has reason to know … of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk.” Id. at 546-547, 845 N.E.2d 356, quoting Restatement (Second) of Torts § 500 comment a, at 588 (1965). We examine the record to determine whether there is evidence from which a jury could conclude that the teammate “engaged in extreme misconduct outside the range of the ordinary activity inherent in the sport.” Borella, 96 Mass. App. Ct. at 624, 137 N.E.3d 431. Viewing the summary judgment record in the light most favorable to the plaintiff, she had no reasonable expectation of proving that the teammate’s actions rose to this level of misconduct.
Contrary to the plaintiff’s claim, a jury could not find that the teammate saw the plaintiff before the injury with enough time to prevent the accident. The plaintiff jogged onto the field near where the teammate was preparing to bat. The plaintiff testified at a deposition that the teammate had her back to the entrance, and she wore a batting helmet that limited her peripheral vision. Although the players were supposed to look around before swinging, the plaintiff did not remember whether the teammate looked around. The plaintiff’s failure of memory in this regard does not directly contradict the teammate’s affirmative recollection that she looked around her before she swung the bat. See Gray, 49 Mass. App. Ct. at 440 n.4, 730 N.E.2d 338 (plaintiff’s assertion that golfer “could have and should have been able to see the plaintiff” did not rebut defendant’s deposition testimony that he did not see plaintiff). But even were we to assume that there was a sufficient factual dispute over whether the teammate looked before she swung, and that the plaintiff was “capable of being seen from at least the time she was passing by the chain link gate until she was hit” (as the plaintiff’s expert opined), there is no rational view of the evidence that the teammate in fact saw the plaintiff before the teammate swung the bat with enough time to prevent the accident. Accordingly, this scenario, as a matter of law, did not rise to the level of recklessness. See id. (golfer was not reckless where he did not see plaintiff before taking his shot and plaintiff was not in intended path of golfer’s shot); Bowman, 853 N.E.2d at 996-997 (plaintiff’s conduct was not reckless where she struck coparticipant with backswing without ascertaining coparticipant’s precise location during high school golf practice).
The plaintiff disputes that the coach had given the “go” signal for the teammate to begin batting. Viewing the evidence in favor of the nonmoving party, even if the teammate swung her bat before the coach told players to start, the teammate’s actions were at most negligent. The plaintiff was a collegiate softball player who had played for fourteen years at the time of her injury. The plaintiff acknowledged that the coaches did “not necessarily hav[e] to micromanage every part” of the practice, and players could begin practicing at their station before the coach said “go.” Based on the players’ experience and skill level, this conduct, as a matter of law, was not reckless. See Borella, 96 Mass. App. Ct. at 624, 137 N.E.3d 431.
The plaintiff claims she said “wait” before the incident. In her deposition, however, the plaintiff did not remember whether she said “wait” out loud or in her head. She did not remember her exact location when she said “wait,” the timing of when she said it, or how loudly she said it. Indeed, the plaintiff stated that she yelled “wait” “almost immediately” before she was struck. Accordingly, there was no evidence that the teammate could or did hear the plaintiff say “wait” before the teammate swung her bat, let alone in enough time to stop her swing. Indeed, the teammate testified in her deposition that she did not hear the plaintiff say anything before the accident. The plaintiff had no reasonable expectation of proving recklessness from this evidence. See Patterson v. Liberty Mut. Ins. Co., 48 Mass. App. Ct. 586, 592, 723 N.E.2d 1005 (2000) (party “cannot prevail if any critical element is left to surmise, conjecture or speculation or otherwise lacks evidential support”).
4. Claims against the Suffolk defendants. Although a coach’s duty of care to opposing players is the same recklessness standard that applies to the players she coaches, Borella, 96 Mass. App. Ct. at 628, 137 N.E.3d 431, we assume without deciding that a coach ordinarily has a duty of ordinary reasonable care to her own players. See Kavanagh, 440 Mass. at 202, 795 N.E.2d 1170 (not reaching this question). Cf. Moose v. Massachusetts Inst. of Tech., 43 Mass. App. Ct. 420, 425, 683 N.E.2d 706 (1997) (university and coaches liable in negligence to injured pole vaulter for unsafe equipment and landing pit). Here, however, it is uncontested that Suffolk University had an enforceable liability waiver barring the plaintiff from bringing an ordinary negligence suit. See Rafferty v. Merck & Co., 479 Mass. 141, 155, 92 N.E.3d 1205 (2018), quoting Maryland Cas. Co. v. NSTAR Elec. Co., 471 Mass. 416, 422, 30 N.E.3d 105 (2015) (” ‘while a party may contract against liability for harm caused by its negligence, it may not do so with respect to its gross negligence’ or, for that matter, its reckless or intentional conduct”). Thus, we analyze the plaintiff’s claims only for gross negligence and recklessness.
a. Gross negligence. “[G]ross negligence is substantially and appreciably higher in magnitude than ordinary negligence. … It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care.” Parsons v. Ameri, 97 Mass. App. Ct. 96, 106, 142 N.E.3d 628 (2020), quoting Altman v. Aronson, 231 Mass. 588, 591-592, 121 N.E. 505 (1919). “The ‘voluntary incurring of obvious risk’ and ‘persistence in a palpably negligent course of conduct over an appreciable period of time’ are among ‘the more common indicia of gross negligence.’ ” Parsons, supra, quoting Lynch v. Springfield Safe Deposit & Trust Co., 294 Mass. 170, 172, 200 N.E. 914 (1936).
The plaintiff’s expert stated that the positioning of the tee station near the entrance enhanced the risk of serious danger for the players when there were safer alternative locations for the drill. The head coach gave the players approximately five minutes to transition. The head coach had no reason to believe that these trained collegiate athletes would enter the field while players were swinging their bats at the tee station. Based on the collegiate athletes’ knowledge and experience, the head coach’s assertedly inadequate planning makes out, at worst, only ordinary negligence. See Aleo v. SLB Toys USA, Inc., 466 Mass. 398, 410, 995 N.E.2d 740 (2013), quoting Altman, 231 Mass. at 591, 121 N.E. 505 (“Gross negligence … is materially more want of care than constitutes simple inadvertence”).3
It remains a contested fact whether the coach told the players to start their stations before everyone was in place.4 Taking all inferences in favor of the plaintiff, it was at most negligent for the head coach to have prematurely yelled “go” before all of the trained athletes were at their next station.
b. Recklessness. “[R]eckless conduct involves a degree of risk and a voluntary taking of that risk so marked that, compared to negligence, there is not just a difference in degree but also a difference in kind.” Gray, 49 Mass. App. Ct. at 440, 730 N.E.2d 338, quoting Sandler v. Commonwealth, 419 Mass. 334, 337, 644 N.E.2d 641 (1995). “[I]n order to impose liability on a coach for the conduct of a player, there must be, at the least, evidence of ‘specific information about [the] player suggesting a propensity to engage in violent conduct, or some warning that [the] player … appeared headed toward such conduct as the game progressed.’ ” Borella, 96 Mass. App. Ct. at 628, 137 N.E.3d 431, quoting Kavanagh, 440 Mass. at 203, 795 N.E.2d 1170. Here, there is no indication that the teammate intentionally struck the plaintiff or that the teammate had a history of reckless conduct. The plaintiff testified that she and the teammate were best friends, and that she did not think the teammate hit her on purpose. See Gray, supra. As a matter of law, there is no basis for a jury to find that the head coach acted recklessly in allowing the teammate to practice hitting off tees.
Judgment affirmed.
——–
Notes:
1 Meredith Ball and Suffolk University.
2 In Pfenning v. Lineman, 947 N.E.2d 392, 404 (Ind. 2011), the Supreme Court of Indiana took issue with some of the reasoning in Bowman, but ultimately approved of its conclusion that “intentional or reckless infliction of injury” is the proper standard.
3 Gross negligence, of course, takes into account the age, experience, and skill level of the players. A setup that is merely negligent for experienced collegiate athletes might well be grossly negligent for beginners or young children.
4 The teammate testified that she was told to start. The head coach said that she had already said “go.”
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Nebraska Supreme Court upholds release for a minor who was injured as a student athlete at a private college.
Posted: April 17, 2023 Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue), Sports | Tags: Exculpatory clause, Indemnity Clause, Injury, Minor, Nebraska, Parent can sign away Minor's Right to Sue, Release, student athlete, Waiver Leave a commentAge of majority is 19 in Nebraska. Student athlete was 18 when he, and his mother signed release. Release was used to stop lawsuit over injuries received as a student athlete.
Sinu v. Concordia Univ., 313 Neb. 218 (Neb. 2023)
State: Nebraska, Supreme Court of Nebraska
Plaintiff: Konrad Sinu and his mother
Defendant: Concordia University is a private institution in Nebraska
Plaintiff Claims: negligence
Defendant Defenses: Release
Holding: For the Defendant
Year: 2023
Summary
Nebraska Supreme Court upholds release signed by a parent to block the claims of a minor injured as a student athlete.
Facts
Concordia University is a private institution in Nebraska. It recruited Konrad Sinu (the student) to play for the university’s intercollegiate men’s soccer team. The university provided the student with soccer and academic scholarships. Before the student moved to Nebraska from his home in England, he signed an “Assumption of Risk and Waiver of Liability Release.” Because the student was 18 years old, his mother also signed the release.
Roughly 5 months after arriving at the university, the student and his soccer teammates engaged in a mandatory strength and conditioning workout at the university’s Walz Human Performance Complex (the Walz). The workout involved circuit training in which the teammates moved from one exercise station to another in small groups. One station consisted of an exercise referred to as the “face pull.” In the exercise, an elastic resistance band was secured to a squat rack post and was pulled toward the user’s face. During the course of the workout, teammates altered the band’s placement from how a university employee originally set it. When the student approached the squat rack, he observed the resistance band resting on a “I-hook” of the squat rack. As the student performed the exercise, the resistance band slid off the hook and caused injury to his eyes.
The student and his mother sued the university, setting forth a cause of action for negligence. The university asserted numerous affirmative defenses in its responsive pleading. One defense alleged that the claim was barred by the release signed by the student and his mother. Another defense alleged that the claim was barred by the doctrine of assumption of risk.
Analysis: making sense of the law based on these facts.
The Nebraska Supreme Court looked at two issues in this decision. The second issue is whether or not the plaintiff should have been given the opportunity to amend their complain to include claims that might have not been covered by the release. That issue will not be discussed because it is procedural in nature.
The first issue is whether or not a release signed by a minor and his mother can be used in Nebraska to stop claims for injuries received by the minor.
Nebraska as a simple test to determine the validity of a release initially: the release must be valid and enforceable.
Under Nebraska law, releases are exculpatory clauses, as in most other states.
The release is a type of exculpatory clause. An exculpatory clause is “[a] contractual provision relieving a party from liability resulting from a negligent or wrongful act.” Such clauses purport to deny an injured party the right to recover damages from the very person or entity which negligently caused the injury.
The court then compared exculpatory clauses to indemnify clauses since both were used in this release.
An indemnity clause is “[a] contractual provision in which one party agrees to answer for any specified or unspecified liability or harm that the other party might incur.” Although an indemnity clause may ultimately have the same effect as an exculpatory clause, they differ. “An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing the injury, while an indemnification clause attempts to shift the responsibility for the payment of damages to someone other than the negligent party . . . .” In some situations, the indemnity clause shifts such responsibility back to the injured party, thereby yielding the same result as an exculpatory clause. But “an indemnity provision generally does not apply to claims between the parties to an agreement. . . . ‘Rather, [the provision] obligates the indemnitor to protect the indemnitee against claims brought by persons not a party to the provision.'”
The court then explained additional requirements for a release to be valid.
Exculpatory clauses are enforceable only where and to the extent that the intention to be relieved was made clear and unequivocal in the contract, and the wording must be so clear and understandable that an ordinary and knowledgeable party will know what he [or she] is contracting away
This is sort of a step back to the plain English rule. Where contracts for consumers must be understood by the consumer. The persons signing a release are not consumers under the legal meaning of the term, but they are not sophisticated business people represented by attorneys. Consequently, many courts require the language of the release to be understandable and clearly state the intentions of the release. No more small print hidden on the paperwork.
The court then looked at the language in the release. This release did not use the magic term “negligence” which is required in many states; however the court found the language explained the issues and was easy to understand.
The provision must be looked at as a whole and given a reasonable construction. If there is no specific reference to liability for negligence, it must otherwise clearly appear from the language used or from a determination that no other meaning could be ascribed to the contract such that the court is firmly convinced that such interpretation reflects the intention of the parties. Here, the intended effect was clear.
The court then went through the release section by section pointing out the important points that made the release a valid and enforceable agreement.
Start with the language of the release. In large, boldface type at the top of the page appears the title, “Assumption of Risk and Waiver of Liability Release.” The document then states that “[i]n consideration of . . . being provided access and the opportunity to use the Walz” and in recognition of the “risks inherent in such physical activity, I do hereby . . . release . . . the [u\niversity . . . from and against any and all claims, demands, injuries, actions or causes of action, for . . . personal injury . . . which may result from my presence at or participation in any such [u]niversity activities.” (Emphasis supplied.)
Although the document does not mention negligence, it is apparent that releasing the university from its own negligence was the document’s intended consequence. As is evident from the definition of an exculpatory clause set forth above, relieving a party from its own negligence is the very purpose of an exculpatory clause. The language of the release clearly demonstrates an intent to eliminate the university’s liability, particularly when protecting the university from negligence claims is the only reasonable construction.
In some cases dealing with indemnity clauses, we have found broad language to not be clear or unequivocal. In one case, we determined that a reference to ‘”any and all claims for damage and liability for injury to or death of persons'” was not sufficient to impose liability for an indemnitee’s negligence. In another case, we stated that language that an indemnitor would protect an indemnitee against ‘”all risks and from any claims that may arise out of or pertain to the performance of such work,'” did not constitute express language covering the indemnitee’s own negligence nor did it constitute clear and unequivocal language that it was the parties’ intention to cover the indemnitee’s own negligence.
The plaintiff’s argued the release was ambiguous. Again, the court looked at the issue of the release not containing the magic term negligence and again found the language of the release was clear enough, that it was not needed. However, since the court brought that issue up three times in one decision, it might be important to include the word in releases in Nebraska.
For the same reason expressed above, we reject the student and his mother’s claim that the release did not unambiguously notify them that they were releasing the university from its own negligence. While the release’s language may not have explicitly used the word “negligence” or referenced the university’s conduct, it was not ambiguous.
An ambiguity in a release is a word, phrase or provision that may reasonably be interpreted in more than one way.
An exculpatory clause, like a contract, is ambiguous when a word, phrase, or provision in the contract has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings. A contract which is written in clear and unambiguous language is not subject to interpretation or construction; rather, the intent of the parties must be determined from the contents of the contract, and the contract must be enforced according to its terms.
The plaintiffs then argued the release was unconscionable. Here the court found the release was not in several different ways.
Even if clear and unambiguous, an exculpatory clause will be unenforceable if it is unconscionable or void as against public policy. The student and his mother advance several reasons why they believe the release was unconscionable and void as against public policy. Those reasons lack merit.
To begin, courts are disinclined to find a contractual agreement void as against public policy. Courts should be cautious in holding contracts void on the ground that the contract is contrary to public policy; to be void as against public policy, the contract should be quite clearly repugnant to the public conscience
There is a general reluctance to hold a release or any contract unconscionable. The court then applied a two-prong test to the release to determine if it was unconscionable.
We have stated that an essential fact in determining unconscionability is the disparity in respective bargaining positions of parties to a contract. Other jurisdictions have adopted a two-prong test for determining whether exculpatory clauses are invalid as contrary to public policy: (1) whether there was a disparity of bargaining power between the parties and (2) the types of services being offered or provided.
The court found there was no disparity in bargaining power because the student athlete was free to go to other schools to play soccer. The second test reviews the types of services be offered in exchange for the release but a necessity; something that you really can’t live without.
Further, the services offered by the university were not a public or essential service. The university is a private school, and the release related to a recreational activity. “Exculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy. Indeed, plaintiff’s ordinary negligence claims may generally be barred where she or he voluntarily executes exculpatory contract in order to participate in recreational or nonessential activities.”
Recreational activities in Nebraska are not necessities. This has been the holding when any court looks at the issues of recreational activities. Although most readers would argue that without recreation, life is pretty dull, it is still not an essential component for life, yet.
What the court never examined was the age of the signor and who or how the student athlete was barred by the release. In Nebraska, you are not an adult until you reach the age of 19. When the student athlete signed the release, he was only 18 years old. See
The age that minors become adults for the ages of the states when a minor becomes an adult.
In every state, a minor cannot sign a release, and unless there is an aberration in the law in Nebraska, I am not familiar with, if you are a minor, someone under the age of consent, then you cannot sign a contract.
The student’s mother was supposedly over the age of 19, although never brought out in the release and the release was deemed valid to stop her and her sons claims. Consequently, Nebraska joins the list of states where a parent can sign away a minor’s right to sue. See States that allow a parent to sign away a minor’s right to sue for the other states and case law that allow a parent to sign away a minor’s right to sue.
So Now What?
The good news is Nebraska joins the short list of states that allow a parent to sign away a minor’s right to sue.
The educational issue there are several points to review when writing a release under Nebraska law. The most important is to include the magic word “negligence” in the release as the legal right the signor of the release is giving up.
Other articles reviewing Nebraska Law see:
In Nebraska a release can defeat claims for gross negligence for health club injury
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, 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 manufactures 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 and Law.
To see Jim’s complete bio go here and to see his CV you can find it here.
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Sinu v. Concordia Univ., 313 Neb. 218 (Neb. 2023)
Posted: April 17, 2023 Filed under: Minors, Youth, Children, Nebraska, Release (pre-injury contract not to sue), Sports, Uncategorized | Tags: Minor, Nebraska, Private College, Release, student athlete, Waiver Leave a comment313 Neb. 218
KONRAD SINU AND LIDIA SZURLEJ, APPELLANTS.
v.
CONCORDIA UNIVERSITY, APPELLEE.
No. S-21-959
Supreme Court of Nebraska
January 13, 2023
1.
Summary Judgment: Appeal and Error. An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.
2. __:__. In reviewing the grant of a motion for summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence.
3. Rules of the Supreme Court: Pleadings: Appeal and Error. An appellate court reviews a district court’s denial of a motion to amend under Neb. Ct. R. Pldg. § 6-1115(a) for an abuse of discretion. However, an appellate court reviews de novo any underlying legal conclusion that the proposed amendments would be futile.
4. Contracts: Words and Phrases. An exculpatory clause is a contractual provision relieving a party from liability resulting from a negligent or wrongful act.
5. Contracts: Intent. Exculpatory clauses are enforceable only where and to the extent that the intention to be relieved was made clear and unequivocal in the contract, and the wording must be so clear and understandable that an ordinary and knowledgeable party will know what he or she is contracting away.
6. Contracts: Words and Phrases. An exculpatory clause is governed by principles generally applied in construction or interpretation of other contracts.
7. Contracts: Negligence: Liability: Intent. If there is no specific reference to liability for negligence, it must otherwise clearly appear from the language used or from a determination that no other meaning could be ascribed to the contract such that the court is firmly convinced that such interpretation reflects the intention of the parties.
8. Contracts: Words and Phrases. An exculpatory clause, like a contract, is ambiguous when a word, phrase, or provision in the contract has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings.
9. Contracts: Intent. A contract which is written in clear and unambiguous language is not subject to interpretation or construction; rather, the intent of the parties must be determined from the contents of the contract, and the contract must be enforced according to its terms.
10. Contracts: Public Policy. Courts should be cautious in holding contracts void on the ground that the contract is contrary to public policy; to be void as against public policy, the contract should be quite clearly repugnant to the public conscience.
11. __:__ . Whether a particular exculpatory clause in a contractual agreement violates public policy depends upon the facts and circumstances of the agreement and the parties involved.
12. Contracts. An essential fact in determining unconscionability is the disparity in respective bargaining positions of parties to a contract.
13. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.
14. Rules of the Supreme Court: Pleadings: Appeal and Error. When a party seeks leave to amend a pleading, appellate court rules generally require that leave shall be freely given when justice so requires. Denial of leave to amend pleadings is appropriate only in those limited circumstances in which undue delay, bad faith on the part of the moving party, futility of the amendment, or unfair prejudice to the nonmoving party can be demonstrated.
15. Pleadings: Pretrial Procedure: Summary Judgment. When a motion for leave to amend a pleading is filed after a motion for summary judgment but before discovery is closed, the standard for assessing the futility of the amendment turns on whether there was a sufficient opportunity for discovery.
16. __:__:__. When a motion for summary judgment has been filed and a party seeking leave to amend a pleading has had sufficient opportunity for discovery, futility is judged by whether the proposed amendment could withstand a motion for summary judgment.
17. Pleadings: Evidence: Summary Judgment. A proposed amendment to a pleading may be considered futile when the evidence in support of the proposed amendment creates no triable issue of fact and the opposing party would be entitled to judgment as a matter of law.
18.
Negligence: Words and Phrases. Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty.
19. Negligence. Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.
20. Negligence: Summary Judgment. The issue of gross negligence is susceptible to resolution in a motion for summary judgment.
Appeal from the District Court for Seward County: James C. Stecker, Judge. Affirmed.
Jason G. Ausman and Michelle D. Epstein, of Ausman Law Firm, PC, L.L.O, for appellants.
David P. Kennison and Heidi A. Guttau, of Baird Holm, L.L.P., for appellee.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg, JJ., and Strong, District Judge.
Cassel, J.
I. INTRODUCTION
Based upon a waiver of liability signed by a student and his mother, the district court granted a summary judgment rejecting their negligence claim against a university. The court also refused an attempt-made after the summary judgment motion was filed but before discovery closed-to amend the complaint. They appeal.
We find no error in granting summary judgment. Although the release did not mention negligence, its language was broad and clear and did not contravene public policy.
On the denial of leave to amend, we first settle the standard for assessing futility at that point. Because they had sufficient opportunity for discovery and we agree that their proposed amendments to add allegations of gross negligence would be futile, we find no abuse of discretion. We affirm.
II. BACKGROUND
We begin with a brief background. Additional facts will be incorporated, as necessary, in the analysis section.
Concordia University is a private institution in Nebraska. It recruited Konrad Sinu (the student) to play for the university’s intercollegiate men’s soccer team. The university provided the student with soccer and academic scholarships. Before the student moved to Nebraska from his home in England, he signed an “Assumption of Risk and Waiver of Liability Release.” Because the student was 18 years old, his mother also signed the release.
Roughly 5 months after arriving at the university, the student and his soccer teammates engaged in a mandatory strength and conditioning workout at the university’s Walz Human Performance Complex (the Walz). The workout involved circuit training in which the teammates moved from one exercise station to another in small groups. One station consisted of an exercise referred to as the “face pull.” In the exercise, an elastic resistance band was secured to a squat rack post and was pulled toward the user’s face. During the course of the workout, teammates altered the band’s placement from how a university employee originally set it. When the student approached the squat rack, he observed the resistance band resting on a “I-hook” of the squat rack. As the student performed the exercise, the resistance band slid off the hook and caused injury to his eyes.
The student and his mother sued the university, setting forth a cause of action for negligence. The university asserted numerous affirmative defenses in its responsive pleading. One defense alleged that the claim was barred by the release signed by the student and his mother. Another defense alleged that the claim was barred by the doctrine of assumption of risk.
Some 4 months prior to the discovery deadline, the university moved for summary judgment. Approximately 2 months later and prior to the hearing on the university’s motion, the student and his mother moved for leave to file an amended complaint. They wished to add allegations that the university’s willful and wanton or grossly negligent actions caused the student’s injuries. Following a hearing on the motion to amend, the court denied the motion.
After the discovery deadline and days before the scheduled summary judgment hearing, the student and his mother filed a renewed motion for leave to file an amended complaint. The court again denied the motion for leave, finding that any amendment would be futile.
The court held a hearing on the motion for summary judgment and received a number of exhibits. It subsequently entered summary judgment in the university’s favor and dismissed the complaint with prejudice. In doing so, the court rejected arguments that the release was unconscionable, that it did not release the university from liability for its own negligence, and that the release did not amount to an assumption of risk.
The student and his mother appealed, and we moved the case to our docket.[1]
III. ASSIGNMENTS OF ERROR
The student and his mother allege that the district court erred in (1) granting summary judgment in the university’s favor when genuine disputes remain as to material facts and the ultimate inferences that a jury may draw from those facts and (2) denying their motion for leave to file an amended complaint when the proposed amended complaint stated a claim for which relief could be granted.
IV. STANDARD OF REVIEW
An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.[2]
In reviewing the grant of a motion for summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence.[3]
An appellate court reviews a district court’s denial of a motion to amend under Neb. Ct. R. Pldg. § 6-1115(a) for an abuse of discretion. However, an appellate court reviews de novo any underlying legal conclusion that the proposed amendments would be futile.[4]
V. ANALYSIS
1. Summary Judgment
This case is before us following the district court’s entry of summary judgment in the university’s favor. To establish entitlement to judgment as a matter of law, the university relied on the release signed by the student and his mother. For summary judgment to be appropriate, the release must be valid and enforceable. The student and his mother argue that it was not. Before considering their challenges, we set forth the language of the release and discuss exculpatory and indemnity clauses.
(a) Additional Facts
The entire release appeared on one side of a single page. The title, “Assumption of Risk and Waiver of Liability Release,” was displayed in large, boldface type. It then stated:
PLEASE READ THE FOLLOWING CAREFULLY.
If you have any questions or concerns, please visit with an attorney before signing this document. This release must be signed before participation in activities at [the university] is allowed.
I acknowledge that my participation in certain activities including, but not limited to, intercollegiate athletics intramural sports, use of [the Walz], P.E. Center, [university stadium field/track, adjacent [u]niversity athletic fields and the City of Seward’s Plum Creek Park may be hazardous, that my presence and participation are solely at my own risk, and that I assume full responsibility for any resulting injuries, damages, or death.
In consideration of being allowed to participate in such activities and/or being provided access and the opportunity to use the Walz and other [u]niversity facilities and equipment, and in full recognition and appreciation of the danger and risks inherent in such physical activity, I do hereby waive, release and forever discharge the [university, its officers, directors, agents, employees and representatives, from and against any and all claims, demands, injuries, actions or causes of action, for costs, expenses or damages to personal property, or personal injury, or death, which may result from my presence at or participation in any such [u]niversity activities.
I further agree to indemnify and hold the [university, its officers, directors, agents, employees and representatives harmless from any loss, liability, damage or costs including court costs and attorney’s fees incurred as a result of my presence at or participation in any such activities. I also understand that this [release] binds me, my personal representatives, estate, heirs, next of kin and assigns.
I have read the [release] and fully understand it and agree to be legally bound by it. Beneath a line for the student’s signature, the release contained the following section, with boldface type as it appeared on the document:
If 18 years of age or younger, signature of parent/ guardian is also required.
I, as the parent or guardian of the above-named minor, have read the [release], fully understand it, and hereby voluntarily agree and execute the [release] on behalf of myself as well as the above-named minor and agree that the minor and I are legally bound by it.
Below this section appeared a line for the parent’s or guardian’s signature.
(b) Discussion
(i) Exculpatory and Indemnity Clauses
The release is a type of exculpatory clause. An exculpatory clause is “[a] contractual provision relieving a party from liability resulting from a negligent or wrongful act.”[5] Such clauses purport to deny an injured party the right to recover damages from the very person or entity which negligently caused the injury.[6]
The release also contained an indemnity clause, but that clause has not been a focal point of the litigation. We do not express any opinion regarding the validity of the indemnity clause contained in the release. However, we briefly discuss indemnity clauses in general in order to distinguish them from exculpatory clauses.
An indemnity clause is “[a] contractual provision in which one party agrees to answer for any specified or unspecified liability or harm that the other party might incur.”[7] Although an indemnity clause may ultimately have the same effect as an exculpatory clause, they differ. “An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing the injury, while an indemnification clause attempts to shift the responsibility for the payment of damages to someone other than the negligent party . . . .”[8] In some situations, the indemnity clause shifts such responsibility back to the injured party, thereby yielding the same result as an exculpatory clause.[9]But “an indemnity provision generally does not apply to claims between the parties to an agreement. . . . ‘Rather, [the provision] obligates the indemnitor to protect the indemnitee against claims brought by persons not a party to the provision.'”[10]
Both exculpatory and indemnity clauses must make clear the effect of the agreement. And such a clause is strictly construed against the party claiming its benefit.[11] “Exculpatory clauses are enforceable only where and to the extent that the intention to be relieved was made clear and unequivocal in the contract, and the wording must be so clear and understandable that an ordinary and knowledgeable party will know what he [or she] is contracting away”[12] Similarly, “[a]n agreement which purports to indemnify the party who prepared it from liability for that party’s own negligence . . . must be clear, explicit and comprehensible in each of its essential details [and] must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement.”[13] With this understanding in place, we turn to the student and his mother’s attacks on the release.
(ii) Clear Language
The student and his mother argue that the release did not contain express or clear and unequivocal language that the parties intended to release the university from its own negligence. They are correct that the release does not use words such as “negligence” or “fault.” But that does not end the inquiry.
An exculpatory clause is governed by principles generally applied in construction or interpretation of other contracts.[14] The provision must be looked at as a whole and given a reasonable construction.[15] If there is no specific reference to liability for negligence, it must otherwise clearly appear from the language used or from a determination that no other meaning could be ascribed to the contract such that the court is firmly convinced that such interpretation reflects the intention of the parties.[16] Here, the intended effect was clear.
Start with the language of the release. In large, boldface type at the top of the page appears the title, “Assumption of Risk and Waiver of Liability Release.” The document then states that “[i]n consideration of . . . being provided access and the opportunity to use the Walz” and in recognition of the “risks inherent in such physical activity, I do hereby . . . release . . . the [u\niversity . . . from and against any and all claims, demands, injuries, actions or causes of action, for . . . personal injury . . . which may result from my presence at or participation in any such [u]niversity activities.” (Emphasis supplied.)
Although the document does not mention negligence, it is apparent that releasing the university from its own negligence was the document’s intended consequence. As is evident from the definition of an exculpatory clause set forth above, relieving a party from its own negligence is the very purpose of an exculpatory clause. The language of the release clearly demonstrates an intent to eliminate the university’s liability, particularly when protecting the university from negligence claims is the only reasonable construction.[17]
In some cases dealing with indemnity clauses, we have found broad language to not be clear or unequivocal. In one case, we determined that a reference to ‘”any and all claims for damage and liability for injury to or death of persons'” was not sufficient to impose liability for an indemnitee’s negligence.[18]In another case, we stated that language that an indemnitor would protect an indemnitee against ‘”all risks and from any claims that may arise out of or pertain to the performance of such work,'” did not constitute express language covering the indemnitee’s own negligence nor did it constitute clear and unequivocal language that it was the parties’ intention to cover the indemnitee’s own negligence.[19]
But we are not addressing an indemnity clause here. As set forth above, an exculpatory clause such as a release is not synonymous with an indemnity clause. Because indemnity clauses shift liability and may involve third parties, it is important to specify whose negligence is being covered. But here, an obvious purpose of the release was to exempt the university from its own negligence.
(Hi) Ambiguity
For the same reason expressed above, we reject the student and his mother’s claim that the release did not unambiguously notify them that they were releasing the university from its own negligence. While the release’s language may not have explicitly used the word “negligence” or referenced the university’s conduct, it was not ambiguous.
An exculpatory clause, like a contract, is ambiguous when a word, phrase, or provision in the contract has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings.[20] A contract which is written in clear and unambiguous language is not subject to interpretation or construction; rather, the intent of the parties must be determined from the contents of the contract, and the contract must be enforced according to its terms.[21]
The release placed no liability on the university for any injury suffered by the student. The language plainly stated that the student released the university “from and against any and all claims, demands, injuries, actions or causes of actions, for costs, expenses or damages to personal property, or personal injury, or death, which may result from my presence at or participation in any such [u]niversity activities.” This language covers “any” claim for ordinary negligence, which includes any claim caused by the university’s ordinary negligence. We see no ambiguity.
(iv) Unconscionable and Against Public Policy
Even if clear and unambiguous, an exculpatory clause will be unenforceable if it is unconscionable or void as against public policy. The student and his mother advance several reasons why they believe the release was unconscionable and void as against public policy. Those reasons lack merit.
To begin, courts are disinclined to find a contractual agreement void as against public policy. Courts should be cautious in holding contracts void on the ground that the contract is contrary to public policy; to be void as against public policy, the contract should be quite clearly repugnant to the public conscience.[22] Stated differently, the power of courts to invalidate contracts for being in contravention of public policy is a very delicate and undefined power which should be exercised only in cases free from doubt.[23]
Whether a particular exculpatory clause in a contractual agreement violates public policy depends upon the facts and circumstances of the agreement and the parties involved.[24]Public policy prevents a party from limiting its damages for gross negligence or willful and wanton misconduct.[25] It is important to note at this juncture that the student and his mother’s claim is limited to ordinary negligence. We need not address the release’s enforceability if the student and his mother had alleged gross negligence.
We have stated that an essential fact in determining unconscionability is the disparity in respective bargaining positions of parties to a contract.[26] Other jurisdictions have adopted a two-prong test for determining whether exculpatory clauses are invalid as contrary to public policy: (1) whether there was a disparity of bargaining power between the parties and (2) the types of services being offered or provided.[27]
There was no disparity in bargaining power. The student emphasizes that he was an 18-year-old minor living on a different continent and believed he had to sign the release in order to attend the university. He highlights that the second sentence of the release stated it “must be signed before participation in activities at [the university] is allowed.” But the first sentence of the release informed the student to speak with an attorney before signing the document if he had any concerns. The student had a reasonable opportunity to understand the terms of the contract. And because the student was a minor, his mother also had to agree to the terms and sign the release. The fact that the student was given the release to sign a month prior to moving to Nebraska militates against his compulsion argument. He could have gone elsewhere to play soccer and attend college.
Further, the services offered by the university were not a public or essential service. The university is a private school, and the release related to a recreational activity. “Exculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy. Indeed, plaintiff’s ordinary negligence claims may generally be barred where she or he voluntarily executes exculpatory contract in order to participate in recreational or nonessential activities.”[28] We conclude the release was not void as against public policy.
Because the release was valid, it barred the student and his mother’s negligence claim against the university. We conclude the district court properly entered summary judgment in the university’s favor.
(c) Assumption of Risk
The student and his mother additionally argue that the student did not assume the risk of the danger he confronted. But because the release barred the student’s claim, we need not also address whether the student assumed the risk of his injury. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.[29]
2. Leave to Amend
The student and his mother twice sought leave to amend their complaint to include allegations of gross negligence and willful and wanton misconduct. The court denied both requests. In considering whether the court abused its discretion in doing so, we set forth the relevant procedural timeline and determine the standard of review applicable under the circumstances.
(a) Additional Facts
The following timeline provides helpful context in considering the timing of the motions for leave to amend:
• 06/26/2019: complaint filed
• 08/14/2019: answer filed
• 11/02/2020: discovery deadline extended to 06/04/2021
• 11/02/2020: depositions of three university employees taken
• 11/19/2020: depositions of the student and his mother taken
• 12/02/2020: deposition of university employee taken
• 01/28/2021: motion for summary judgment filed
• 03/25/2021: motion for leave to file amended complaint
• 04/05/2021: court denied motion for leave
-allowed 45 days for disclosure of expert witness
-extended discovery deadline to 08/01/2021
-continued summary judgment hearing to 08/16/2021
• 05/19/2021: student’s expert witness disclosed
• 08/11/2021: renewed motion for leave to file amended complaint
(b) Discussion
When a party seeks leave to amend a pleading, appellate court rules generally require that leave shall be freely given when justice so requires. Denial of leave to amend pleadings is appropriate only in those limited circumstances in which undue delay, bad faith on the part of the moving party, futility of the amendment, or unfair prejudice to the nonmoving party can be demonstrated.[30] As the timeline demonstrates, the student and his mother first sought leave to amend after the university filed its motion for summary judgment but before discovery closed. They filed a renewed request for leave to amend after the discovery deadline.
Our case law has discussed the situation where leave is sought before discovery is complete and before a motion for summary judgment is filed. If leave to amend is sought before discovery is complete and before a motion for summary judgment has been filed, the question of whether such amendment would be futile is judged by reference to Neb. Ct. R. Pldg. § 6-1112(b)(6).[31] Leave to amend in such circumstances should be denied as futile only if the proposed amendment cannot withstand a motion to dismiss under § 6-1112(b)(6).[32]
Our case law has also addressed the situation where leave is sought after discovery is closed and after a motion for summary judgment has been filed. After discovery is closed and a motion for summary judgment has been filed, the appropriate standard for assessing whether a motion to amend should be determined futile is that the proposed amendment must be not only theoretically viable but also solidly grounded in the record and supported by substantial evidence sufficient to give rise to a triable issue of fact.[33]
Our case law has not directly addressed the situation here. The student and his mother sought leave to amend the complaint before the close of discovery but after the university filed a motion for summary judgment.
A commentator has proposed a standard to evaluate futility in such a situation. The commentator suggests that the standard used “should depend on whether the plaintiff can establish that it needs to engage [i]n discovery on the new matter alleged in the amendment.”[34] The commentator explains:
A plaintiff who seeks leave to amend but who lacks sufficient evidence to withstand a motion for summary judgment directed at the new matter should file an affidavit explaining why it needs additional discovery to develop a sufficient evidentiary basis for the new matter. If [the] court finds the explanation sufficient, then the court should evaluate the futility of the amendment by applying the standard for [a] motion to dismiss for failure to state a claim. If the court finds the explanation insufficient, then the court should apply the standard for summary judgment.[35]
We agree with the commentator’s view. When a motion for leave to amend a pleading is filed after a motion for summary judgment but before discovery is closed, the standard for assessing the futility of the amendment turns on whether there was a sufficient opportunity for discovery. Here, there was.
The student and his mother had engaged in substantial discovery to develop their case. At the time of their initial motion for leave, they had taken the depositions of six individuals. They had requested additional time to disclose expert opinions regarding the university’s alleged negligence and had disclosed their expert witness prior to renewing their motion for leave.
When a motion for summary judgment has been filed and a party seeking leave to amend a pleading has had sufficient opportunity for discovery, futility is judged by whether the proposed amendment could withstand a motion for summary judgment. In determining whether the proposed amendment was futile, the standard is whether the proposed amendment is both theoretically viable and solidly grounded in the record and supported by substantial evidence sufficient to give rise to a triable issue of fact.[36] Stated differently, the proposed amendment may be considered futile “when the evidence in support of the proposed amendment creates no triable issue of fact and the opposing party would be entitled to judgment as a matter of law.”[37]
With the appropriate standard in place, we review the district court’s determination for an abuse of discretion. Addressing the renewed motion for leave, the court stated that the facts would not support a finding of gross negligence and that any amendment would be futile. We agree.
The student and his mother wished to amend the complaint to allege the university’s “negligence, recklessness, willful and wanton, and/or grossly negligent actions” caused the student’s injury and damages. Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty.[38] Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.[39] The issue of gross negligence is susceptible to resolution in a motion for summary judgment.[40]
The allegations in the proposed amended complaint do not rise to the level of gross negligence. The proposed complaint would allege, among other things, that the university was negligent in allowing the student athletes to pull the resistance band toward their faces and in failing to inform the student that other student athletes could modify the placement of the bands during the workout. At best, these allegations would implicate ordinary negligence. Because the proposed amendments would have been futile, we conclude the district court did not abuse its discretion in overruling the motions for leave to file an amended complaint.
VI. CONCLUSION
We conclude that the district court properly entered summary judgment in the university’s favor, because the release signed by the student and his mother was valid and enforceable and relieved the university of liability for its ordinary negligence. And because the proposed amendments to the complaint would have been futile, the district court did not abuse its discretion in overruling the student and his mother’s motions for leave to amend. We affirm the judgment.
Affirmed.
Miller-Lerman, J., not participating.
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Notes:
[1] See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).
[2]
Kozal v. Snyder, 312 Neb. 208, 978 N.W.2d 174 (2022).
[4]
Williams v. State, 310 Neb. 588, 967 N.W.2d 677 (2021).
[5] Black’s Law Dictionary 712 (11th ed. 2019).
[6] See 57A Am. Jur. 2d Negligence § 41 (2022).
[7] Black’s Law Dictionary 919 (11th ed. 2019).
[8] 57A Am. Jur. 2d, supra note 6, § 43 at 86.
[10]
Ganske v. Spence, 129 S.W.3d 701, 708 (Tex. App. 2004).
[11]See, Annot, 175 A.L.R. 8, § 8 (1948); 57AAm. Jur. 2d, supra note 6; 17A C.J.S. Contracts § 448 (2020). See, also, Dion v. City of Omaha, 311 Neb. 522, 973 N.W.2d 666 (2022).
[12] 57A Am. Jur. 2d, supra note 6, § 46 at 91.
[14] See Oddo v. Speedway Scaffold Co., 233 Neb. 1, 443 N.W.2d 596 (1989).
[15] See Kuhn v. Wells Fargo Bank of Neb., 278 Neb. 428, 771 N.W.2d 103 (2009).
[16]
Dion v. City of Omaha, supra note 11.
[17] See 57A Am. Jur. 2d, supra note 6, § 49.
[18]
Dion v. City of Omaha, supra note 11, 311 Neb. at 556, 973 N.W.2d at 690.
[19]
Anderson v. Nashua Corp., 251 Neb. 833, 840, 560 N.W.2d 446, 450 (1997).
[20]See Community First Bank v. First Central Bank McCook, 310 Neb. 839. 969 N.W.2d 661 (2022).
[21]New Light Co. v. Wells Fargo Alarm Servs., 247 Neb. 57, 525 N.W.2d 25 (1994).
[22]SFI Ltd. Partnership 8 v. Carroll, 288 Neb. 698, 851 N.W.2d 82 (2014).
[23]Myers v. Nebraska Invest. Council, 272 Neb. 669, 724 N.W.2d 776 (2006).
[24]New Light Co. v. Wells Fargo Alarm Servs., supra note 21.
[26]Myers v. Nebraska Invest. Council, supra note 23.
[27]Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920 (Minn. 1982).
[28] 57A Am. Jur. 2d, supra note 6, § 62 at 112.
[29]
Schreiber Bros. Hog Co. v. Schreiber, 312 Neb. 707, 980 N.W.2d 890 (2022).
[30]
McCaulley v. C L Enters., 309 Neb. 141, 959 N.W.2d 225 (2021).
[31]
Estermann v. Bose, 296 Neb. 228, 892 N.W.2d 857 (2017).
[34] John P. Lenich, Nebraska Civil Procedure § 15:4 at 723 (2022).
[36] See Estermann v. Bose, supra note 31.
[37]
Bailey v. First Nat. Bank of Chadron, 16 Neb.App. 153, 169, 741 N.W.2d 184, 197 (2007).
[38]
Palmer v. Lakeside Wellness Ctr., 281 Neb. 780, 798 N.W.2d 845 (2011).
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