Messer v. Hi Country Stables Corp., 2013 U.S. Dist. LEXIS 2675, 2013 WL 93183
Posted: September 29, 2020 Filed under: Colorado, Equine Activities (Horses, Donkeys, Mules) & Animals, Release (pre-injury contract not to sue) | Tags: Colorado, Customers, Hi Country Stables Corporation, Horse, horse-back, Horseback Ride, Inc., lease, Manufacturer, mutual, Negligence, Product liability, Release, ride, Rocky Mountain National Park, Saddle, Slipping Saddle, Sombrero Ranches, Stables, Trail, Trail Ride, Waiver, Wanton, Wilful, Willful and Wanton, Willful and Wanton Conduct Leave a commentMesser v. Hi Country Stables Corp., 2013 U.S. Dist. LEXIS 2675, 2013 WL 93183
United States District Court for the District of Colorado
January 8, 2013, Decided; January 8, 2013, Filed
Civil Action No. 11-cv-01500-WJM-MJW
2013 U.S. Dist. LEXIS 2675 *; 2013 WL 93183
ALVA MESSER, Plaintiff, v. HI COUNTRY STABLES CORPORATION, Defendant.
Prior History: Messer v. Hi Country Stables Corp., 2012 U.S. Dist. LEXIS 170499 (D. Colo., Nov. 30, 2012)
Counsel: [*1] For Alva Messer, Plaintiff: Donald L. Salem, Feldmann Nagel, LLC-Denver, Denver, CO.
For Hi Country Stables Corporation, Defendant, Counter Claimant: Kenneth H. Lyman, Malcolm S. Mead, Hall & Evans, LLC-Denver, Denver, CO.
For Alva Messer, Counter Defendant: Donald L. Salem, Michael G. Bryan, Feldmann Nagel, LLC-Denver, Denver, CO.
Judges: William J. Martinez, United States District Judge.
Opinion by: William J. Martinez
AMENDED ORDER DENYING IN PART AND GRANTING IN PART MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant’s Motion for Summary Judgment. (ECF. No. 41.) Plaintiff Alva Messer (“Plaintiff”) has filed a Response to this Motion (ECF No. 42.) and Defendant Hi Country Stables Corporation (“HCS” or “Defendant”) has filed a Reply. (ECF No. 45.) The Motion is ripe for adjudication.
Having reviewed the briefs and the relevant portions of the record, the Motion for Summary Judgment is granted in part and denied in part.
I. BACKGROUND1
A. Factual Background
On July 16, 2009, Plaintiff Alva Messer purchased a guided horseback ride from Hi County [*2] Stables. (ECF No. 41 at 3.) Defendant HCS operates commercial horse-back riding at Glacier Creek Stables in Rocky Mountain National Park (“RMNP”). (ECF No. 41 at 7.) HCS is one of two equestrian companies owned by Rex Walker. (Id.) The other equestrian company is Sombrero Ranches, Inc. (“SRI”). (Id.) Before beginning any guided horseback ride, both companies require customers to sign an exculpatory contract, titled “Release” (hereafter “the Release” or “Release Forms”). (Id.) The Release Forms for HCS and SRI are identical, except for the name of the company being released from liability. (Id. at 4.) The Release Forms for HCS and SRI are printed in tablets containing 100 tear-away forms per tablet. Once printed, the printing company delivers the tablets to the offices of HCS and SRI. (Id.)
At the start of the 2009 riding season, one tablet of Release Forms labeled SRI was placed in a box of office supplies for delivery to HCS. (Id. at 5.) For reasons that are unexplained by Defendant, those same Release Forms—which Released SRI from liability—were used by HCS at Glacier Creek Stables on July 16, 2009. (Id. at 5; see also, Exh. C, Walker Dep. at 29:13 – 30:5.)
Typically, when customers [*3] arrive at HCS, they are informed that they must sign a Release. (Id. at 6; Exh. D, Marshall Dep. at 29.) Amongst other employees at HCS, Dallas Marshall informs customers that they are required to sign the Release and “mark their riding ability.” (Id.)
When the Messers arrived at HCS on July 16, 2009, Marshall followed her normal practice and informed the Messers of the Release. (Id.) She also requested that they indicate their riding ability, which Plaintiff did. (Id.) Following this, and before commencing the guided horseback ride, Plaintiff signed the Release. (Id.) The Release expressly provides that the customer “understands. . .the specific risks. . .arising from riding a horse. . .and that the [customer] nevertheless intentionally agree[s] to assume these risks.” (ECF No. 41, Exh. A.)
After signing the Release, Plaintiff entered the corral where she was assigned her horse before commencing the trail ride. (Id. at 8; see also, Exh B, Alva Messer Dep. at 35:16-24). The wrangler who led the guests on Plaintiff’s trail ride was Terry Humphrey. (Id.)
Plaintiff encountered problems with her saddle during the trail ride which required adjustment by Plaintiff and Humphrey. (ECF No. 41, [*4] Exh. B, Alva Messer Dep. at 49:1 – 50:1; Exh., Humphrey Dep. at 44:18-25; 45:7 – 46:1; 47:13-22; Exh. F, Donald Messer Dep. at 22:10-17).2
At the midway point, the Messer group stopped to take a rest break. (ECF No. 41, Exh. B, Alva Messer Dep. at 47:10-20). Plaintiff encountered further problems with her saddle—including slippage of the saddle to the horse’s right. (ld. at 50:2-9)
Sometime later, as Plaintiff’s horse was stepping down a “rock stair” in the trail, Plaintiff fell off the right side of the horse (the “Incident.”) (ECF No. 42, Exh. E, Humphrey Dep. at 54:15- 55:10; Exh. F, Donald Messer Dep. at 27:1- 28:6.) Plaintiff allegedly sustained serious injuries and economic loss resulting from the Incident. (ECF No.1 at ¶¶ 14 and 57.)
II. LEGAL STANDARDS
Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A fact is “material” if under [*5] the relevant substantive law it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). An issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997). In analyzing a motion for summary judgment, a court must view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)). With this approach of resolving factual ambiguities against the moving party, the Court, as it should, thus favors the right to a trial. See Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
III. ANALYSIS
Defendant’s instant Motion seeks reformation of the Release and moves for summary judgment as to the Plaintiff’s claims—including: negligence; product liability; and, wilful and wanton conduct. If granted, Defendant argues that the Release should bar the negligence and product liability claims. The Court will first address [*6] this issue.
A. Effect of the Release on the Negligence and Product Liability Claims
1. Reformation
Defendant seeks to reform the Release to reflect the true intent of the parties by substituting the name HCS for SRI. (ECF No. 41 at 22.)
Reformation of a contract is an “equitable remedy, and the formulation of such remedy rests with the court’s discretion.” May v. Travelers Property Casualty Co. 2006 U.S. Dist. LEXIS 80849, 2006 WL 3218852 at *2-3 (D. Colo. 2006, November 6, 2006). “Reformation of a written instrument is appropriate only when the instrument does not represent the true agreement of the parties and the purpose of reformation is to give effect to the parties’ actual intentions.” Maryland Cas. Co. v. Buckeye Gas Prod. Co., 797 P.2d 11, 13 (Colo. 1990).3 Mutual mistake of a contract provides grounds for reformation if the written instrument “does not express the true intent or agreement of the parties.” Segelke v. Kilmer, 145 Colo. 538, 360 P.2d 423, 426-27 (Colo. 1961).
An “essential prerequisite to a court’s power to reform a contract on the ground [*7] of mutual mistake is the existence of a prior agreement that represents the actual expectations of the parties and provides the basis upon which a court orders reformation.” Maryland Cas. Co., 797 P.2d at 13. Prior agreement must be found from the evidence presented, which must be “clear and unequivocal”, and appropriate under the “circumstances.” Id.
See also, Segelke 360 P.2d at 426-27.
Here, Defendant asserts that the intent of the Release was to bind Plaintiff Alva Messer and Defendant HCS. Defendant contends that reference to SRI on the Release was a mutual mistake and that SRI should be substituted with HCS. The Court agrees. This holding is supported by Plaintiff Messer’s own testimony, which clearly reflects the parties’ common understanding of the signed document and shows acknowledgment by Plaintiff that the Release was, in fact, releasing HCS – not SRI. Such testimony is found in the following passage:
Q. You were told it was a release, correct?
Q. And did you have any conception or understanding of what that meant?
A. Well, I assume a release is to release the people, you know, the stables.
Q. And when you were presented this at Hi Country Stables, was it your understanding [*8] that you were releasing Hi Country [Stables]?
(Messer Deposition at 32:3-22).
Because the above testimony is clear and unequivocal, the Court finds that it reflects the parties’ true intentions of the Release that the contract was between Plaintiff Messer and Defendant HCS.
Additionally, Plaintiff signed the Release at a location owned by HCS immediately before embarking on a trail ride guided by HCS employees. (ECF No. 41, Exh A.) Given that Plaintiff signed the document at HCS, it is difficult to see how the Release was intended to apply to any entity other than HCS.
Accordingly, the Court finds that there was mutual mistake at the time the Release was entered into. Mutual intent of the parties was to enter into an agreement whereby HCS would be released from certain claims. This provides the equitable basis to grant the relief. The Court orders that the name “Sombrero Ranches, Inc.” (SRI) be deleted and substituted with “Hi Country Stables” (HCS) in the Release.
2. Application of Release to Plaintiff’s Negligence Claim
As the Court has found that the Release should be reformed, the next issue is whether the Release shields Defendant from Plaintiff’s negligence claim. For the [*9] reasons below, the Court concludes that it does.
To determine whether the Release bars Plaintiff’s negligence claim, the Court must consider four factors: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language. Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981).4
As to the first factor, Colorado law is clear that businesses engaged in recreational services do not perform services that implicate [*10] a public duty. This favors Defendant’s position as to the validity of the Release. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 469 (Colo. 2004).
With respect to the second factor, the Court similarly finds for Defendant because horse-back riding is “not an essential service.” Hamill v. Cheley Colorado Camps, 262 P.3d 945, 949-50 (Colo. App. 2011) Horse-back riding is one of choice, not necessity.
As to third factor, this also cuts in favor of Defendant since there is no evidence to suggest that the Release was entered into unfairly. Instead, Plaintiff signed the Release “in consideration for the opportunity” to ride the trail led by HCS wranglers. (ECF No. 41, Exh A.) Plaintiff also indicated her riding ability. This suggests that she had ample time to review the Release and become familiar with its conditions. It is these facts, amongst others, that rebut any notion that the Release was unfair. Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474-475 (D. Colo. 1992).
With respect to the fourth factor, the Court looks to the language of the Release to elicit its intent. The Court must determine “whether the intent of the parties was to extinguish liability and whether [*11] this intent was clearly and unambiguously expressed.” Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 785 (Colo. 1989). Here, the test is met since the Release specifically uses the word “negligence” throughout the document. Reference to the word negligence expressly indicated that HCS would not be liable for such claims. Also, like the release in Jones, the Release in this case similarly points to the “specific risks” of property and personal injury damage that may “arise out of negligence.” Jones, 623 P.2d at 376. Such language serves to reinforce the intent of the Release and thatPlaintiff agreed to “assume such risks” during the course of the HCS led trail-ride. (ECF No. 41, Exh. A.)
In sum, the Court concludes that the Release shields Defendant from Plaintiff’s negligence claim. To the extent that Defendant’s Motion is directed towards that claim, the Motion for Summary Judgment is granted.5
3. Application of the Release to Plaintiff’s Strict Product Liability Claims
In addressing whether the Release applies to Plaintiff’s product liability claims, the Court finds this result is controlled by existing case law: Boles v. Sun Ergoline, 223 P.3d 724, 727-728 (Colo. 2010). That case held that an agreement releasing “a manufacturer from strict products liability for personal injury, in exchange for nothing more than an individual consumer’s right to have or use the product, necessarily violates the public policy of this jurisdiction and is void.” Id. (emphasis added). The Court holds that this passage has equal application here. As distinct from the negligence claim, Boles provides that the Release does not shield Defendant from the strict product liability claims.
Alternatively, Defendant argues that the broad language of the Release covers product liability claims. [*13] Clause 2 provides: “that [the Customer] know[s] and understand[s] that horse riding . . . risks of . . . including the risk that [HCS]. . . may act negligently in . . . preparing or maintaining the horse . . . equipment or premises . . .” (ECF No. 41 Exh A.) Nothing in Clause 2 suggests that the Release covers claims which involve “leasing” or “manufacturing” saddles used in conjunction with Defendant’s trail rides, which would give rise to a products liability claim. Because exculpatory agreements are strictly construed against the party seeking exception, Defendant’s argument that the Release bars this claim must fail. Barker v. Colorado Region-Sports Car Club, 35 Colo. App. 73, 532 P.2d 372, 377 (Colo. App., 1974.)6
Accordingly, Plaintiff’s product liability claims are not barred by the HCS Release.7
B. Merits of the Product Liability Claims
Defendant also moves for summary judgment on the merits of Plaintiff’s product liability claim. In these claims, Plaintiff alleges (1) that HCS leased a defective saddle to Plaintiff by placing it in the “stream of commerce” and (2) that HCS manufactured a defective saddle that was used by Plaintiff (ECF No. 41 at 35; ECF No. 25 at ¶ ¶ 36-55.)8 Defendant offers two alternative arguments below as to why grant of summary judgment is justified with respect to these claims. The Court will address each in turn.
1. Horse-Back Riding by HCS is a Service and Does Not Give Rise to Products Liability
Defendant contends that summary judgment should be granted on Plaintiff’s product liability claims because the primary purpose of the contract was the provision of a service—not a product. This, Defendant contends, does not give rise to liability in tort. (ECF No. 41 at 37.) See, Yarbro v. Hilton Hotels, 655 P.2d 822, 828 (Colo. 1982)
To buttress its position, Defendant relies on Kaplan v. C Lazy U Ranch, 615 F. Supp. 234 (D. Colo. 1985). There, Judge John L. Kane of this District Court refused to treat “a saddled horse, or a ride on a horse with a saddle” as a product. Id. at 238. Judge Kane held that it was incongruent with strict product liability doctrine and cited several cases that have refused to extend the concept of strict liability to “persons rendering services.”9
Id. at 238 n.3. Defendant asserts that Kaplan has equal application here.
Plaintiff seeks to distinguish Kaplan by making specific reference to “SADDLE EQUIPMENT” in the Complaint. (See ECF No. 25 at ¶ ¶ 36- 51.) Plaintiff seeks to separate the saddle from the horse, and attempt to succeed on that basis.
The Court finds Kaplan persuasive. Like that case, the Court holds that a saddle (on a horse) is not a product—particularly in the context of horse-back riding services. The Court further finds Plaintiff’s distinction is misplaced because it fails to appreciate that the saddle was incidental to the primary purpose of the contract. Plaintiff entered into a contract for a guided five-hour horse back ride through RMNP. This service primarily relied upon a horse (which is not a product) and a saddle (which incidental to that service).10 Without a product, the product liability claims cannot succeed. Yarbro 655 P.2d at 828.
Because the saddle was only incidental to the contract for services, Plaintiff has failed to show a “trial [*17] worthy” issue as to her product liability claims. Harper v. Mancos Sch. Dist. RE-6, 837 F.Supp.2d 1211, 1223-24 (D.Colo.2011).
2. Use of the Saddle Did Not Constitute a Lease
In the alternative, Defendant argues that summary judgment is warranted on Plaintiff’s product liability claims because it is not a “seller”of a product. That is, Defendant does not fall within the definition of “seller” under the statute because Defendant is not a “lessor” of products, nor a “manufacturer”. See generally, C.R.S. § 13-21-401; Hidalgo v. Fagen, Inc., 206 F.3d 1013, 1018 (10th Cir. 2000).11 Again, the Court agrees.
Contrary to Plaintiff’s position, the Court finds that Defendant does not “lease” saddles to its customers. Plaintiff signed a Release “in consideration for the opportunity to ride” a horse through RMNP. (ECF No. 41, Exh A.) The “opportunity to ride” does not create a lease. Its use is too short. Nor does it constitute ownership of the saddle itself.
Moreover, HCS cannot be considered a manufacturer because it does not manufacture saddles. (ECF No. 41, Exh. G, Humphrey [*18] Dep. at ¶11; Exh H, Walker Dep. at ¶ 8.) Plaintiff argues that the “offside billet [of the saddle] is a product and that it became defective while in the course of it distribution from the original manufacturer through Defendant to her as the consumer.” (ECF No. 42 at 34-35). The Court treats this as an admission that Defendant never manufactured the billet. It also supports the finding that no product is involved in the present case.
Plaintiff has failed to show a genuine issue of fact as to whether Defendant leased or manufactured a saddle. Thus, Defendant’s Motion as to both of the product liability claims is granted.
3. Plaintiff’s Argument re Blueflame Gas
Plaintiff argues that Defendant placed a defective saddle “in the course of the distribution process” and is, therefore, liable for product liability. (ECF No. 42 at 33. (emphasis added.)) In support, Plaintiff heavily relies on Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579 (Colo. 1984). There, the defendant purchased propane from Diamond Shamrock. Defendant then transported and sold the propane directly to residential customers. A gas explosion occurred at a residential home. The plaintiff claimed, inter alia, strict liability [*19] based Defendant’s failure to odorize the propane, making it a defective product. The Supreme Court held that a defective product must have arisen at the time of manufacture or “in the course of the distribution process” to the plaintiff. Id. at 590.
The Court is not compelled to find in Plaintiff’s favor based on Blueflame.12 The saddle in this case was not sold to Plaintiff. The saddle was not part of a distribution process. And, unlike the customers in Blueflame, the Court finds that Plaintiff is not permitted to pursue her product liability claim based on a “distribution process” theory.
Therefore, in addition to the reasons addressed above, Plaintiff’s reliance on Blueflame does not save her product liability claims from summary judgment.
C. Merits of the Wilful and Wanton Claim
Plaintiff’s claim for wilful and wanton conduct is trial worthy. First, a waiver cannot release wilful tortfeasors (alleged or otherwise). The Release has no bearing [*20] on this claim. Barker v. Colorado Region Sports Car Club, 35 Colo. App. 73, 532 P.2d 372, 377 (Colo. 1974).
Second, willful and wanton conduct requires a mental state “consonant with purpose, intent and voluntary choice.” Brooks v. Timberline Tours, 127 F.3d 1273, 1276 (10th Cir. 1997). Because key facts going to this mental state are disputed, Defendant is not entitled to judgment as a matter of law. For example, Plaintiff contends that Humphrey did not perform the number of saddle “checks” he asserts. (Alva Messer Dep. at 43:4-44:18; 48:3-11; 48:21-49:17.) Plaintiff also disputes whether Humphery noticed the “saddle rolling to the right” during the trail ride. (Id.) These examples reflect material facts ripe for jury determination. If the jury credits Plaintiff’s testimony on these points, it could reasonably find that Defendant’s actions were wilful and wanton.
The Court finds that Plaintiff has shown a genuine dispute of material fact as to her wilful and wanton conduct claim. As to this claim, Defendant’s Motion for Summary Judgment is denied. See Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001).
III. CONCLUSION
Based on the foregoing, the Court hereby ORDERS as follows:
1. Defendant’s [*21] Motion for Summary Judgment (ECF No. 41) is GRANTED IN PART and DENIED IN PART;
2. Defendant’s Motion for Summary Judgment is GRANTED as to Plaintiff’s claims for negligence and product liability;
3. The Clerk shall enter judgment in favor of Defendant on Plaintiff’s negligence and product liability claims;
4. Defendant’s Motion for Summary Judgment is DENIED as to Plaintiff’s wilful and wanton claim; and
5. Trial will proceed solely on Plaintiff’s willful and wanton claim, as previously scheduled, on March 11, 2013.
Dated this 8th day of January, 2013
Twenty years ago, the New Hampshire Supreme Court shows how you can trample common sense to find a release invalid.
Posted: April 23, 2018 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, New Hampshire, Release (pre-injury contract not to sue) | Tags: Acting Out, Animal, contract language, contravenes, entitled to judgment, exculpatory, exculpatory clauses, exculpatory provision, exhaustive, genuine, Horse, horseback riding, inclusive, issue of fact, matter of law, misunderstanding, Negligence, Notice, obscured, opportunity to prove, own negligence, personal injury, prefaced, Public Policy, qualifying, quotations, Reasonable person, Release, ridden, Summary judgment, tour guide, Trail Ride, unabridged, verb Leave a commentRelease was signed for a trail ride and plaintiff claimed she told guide his horse was getting ready to act out before it kicked her.
Wright v. Loon Mountain Recreation Corporation, 140 N.H. 166; 663 A.2d 1340; 1995 N.H. LEXIS 119
State: New Hampshire, Supreme Court of New Hampshire
Plaintiff: Brenda Wright
Defendant: Loon Mountain Recreation Corporation d/b/a Loon Mountain Equestrian Center
Plaintiff Claims: Negligence
Defendant Defenses: Release
Holding: for the Plaintiff
Year: 1995
Summary
Twenty-year-old New Hampshire Supreme Court decisions shows how convoluted a court can get when it decides a release will not be enforced. Court held the language in the release was confusing. However, to get that point the court had to not read the release I think.
Facts
The plaintiff signed up for a trail ride with the defendant. While on the ride she was kicked in the leg by another horse. She sued. On appeal she argued that her guide had failed to respond to indications that his horse, the one that kicked the plaintiff, was about to “act out.”
While on the tour, the plaintiff was kicked in the leg by her guide’s horse and sustained an injury. She brought a negligence action against the defendant, alleging that her tour guide had failed to respond to indications that his horse was about to “act out.”
[Every time I’ve been bit or kicked by a horse there was no warning. Sure, if a horse’s ears go back, there is a warning, but most times, horse 1, Moss 0. I wish there were indications that a horse was going to act out.]
Prior to suing she signed a release. The trial court dismissed her claim because of the release. She appealed.
New Hampshire has a two-tier court system. The trial court is called the Superior Court and appeals from the Superior Court are appealed to the New Hampshire Supreme Court. This appeal was decided by the New Hampshire Supreme Court.
Analysis: making sense of the law based on these facts.
The entire issue before the court was “whether an exculpatory contract signed by the plaintiff, Brenda Wright, released the defendant, Loon Mountain Recreation Corporation, from liability for its own negligence.”
The defendant argued the release “clearly and specifically indicated an intent to release Loon Mountain from liability for injury resulting from its own negligence while [the plaintiff] was engaged in the activity of horseback riding’“.
The Supreme Court looked at this decision in its analysis in a slightly different way.
This court will not enforce an exculpatory contract that contravenes public policy. “Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that a reasonable person in his position would have known of the exculpatory provision.”
“Since the terms of the contract are strictly construed against the defendant, the contract must clearly state that the defendant is not responsible for the consequences of his negligence.”
The court then read the release to determine if a reasonable person would have known about the exculpatory clause in the release. The court then worked hard to find a reasonable person would not.
A reasonable person would understand the provision if its language “clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence . . . .” We will assess the clarity of the con-tract by evaluating it as a whole, not by examining isolated words and phrases.
We conclude that the contract structure and organization obscured the exculpatory clauses. Strictly construing the contract language against the defendant, we find the contract did not clearly relieve the defendant of responsibility for the sort of negligence at issue in this case.
The language the court examined was in all caps so the language stood out from the surrounding language. However, the court stated that when the entire agreement was read, the all cap language was unclear. (?) The court’s determination that the clause was not clear was based on the word therefore.
In this case, the term “therefore” is significant. A common definition of “therefore” is “for that rea-son: because of that: on that ground . . . .” Webster’s Third New International Dictionary 2372 (unabridged ed. 1961) (Webster’s). A clause that is introduced by the term “therefore” cannot be understood without reading the antecedent language.
The court found additional language that it held confused the meaning of the release. The court concluded its analysis with this statement.
The exculpatory contract lacks a straightforward statement of the defendant’s intent to avoid liability for its failure to use reasonable care in any way. The agreement easily could have been framed in a manner that would have expressed more clearly its conditions and exclusions.
There was a dissent by two justices. Both who found the majority’s analysis was just a little ridiculous.
So Now What?
Sometimes your release is not going to win. In those cases, you are going to rely on your insurance company. In this case, the court worked hard to find little ways it could justify its desire to not support the release.
Possibly, this release might have had a better chance with a simple clear statement that by signing the release the signor could not sue for negligence. This release reads like it was written by an attorney training to kill trees rather than write documents for consumers.
But!
What do you think? Leave a comment.
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Michigan Equine helped the plaintiff more than the stable and helped prove there may be gross negligence on the part of the defendant
Posted: January 11, 2016 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Michigan, Release (pre-injury contract not to sue) | Tags: Equine, Equine Liability Act, Horse, Michigan, Michigan Equine Liability Act, Saddle, stable, Trail Ride Leave a commentPlaintiff argues gross negligence claim which appellate court agreed raise enough triable issues of fact to send the case back to the trial court.
Hawkins, v Ranch Rudolph, Inc., 2005 Mich. App. LEXIS 2366
State: Michigan, COURT OF APPEALS OF MICHIGAN
Plaintiff: Bret D. Hawkins and Erin Hawkins
Defendant: v Ranch Rudolph, Inc. and Circle H Stables, Inc.
Plaintiff Claims: Gross Negligence
Defendant Defenses: Actions not negligent
Holding: For Plaintiff
Year: 2005
The plaintiffs were on their honeymoon and signed up for a trail ride. They chose the “Wrangler Ride” offered by the defendant because the groom had never been on a horse before. The Bride had only been on a horse once when she was eleven. The Wrangler Ride was a four mile single file ride on trails through the woods.
The trail guide or wrangler chose a horse for the groom that was very gentle, normally used for kids. The wrangler gave everyone basic instructions how to stay on the horse and use the reins. The wrangler saddled the horses and double checked the saddles before and after the guests mounted their horses.
The groom claimed after mounting the horse he complained that his saddle was not securely fastened. The wrangler did not recall the groom making this request. She also did not notice the saddle was loose while the groom was mounting the horse.
During the ride the wrangler asked if they wanted to trot their horses and asked if anyone was opposed to the idea. She also said if they were having trouble to yell.
At this point the plaintiff’s version of the facts are so fare outside of the scope of a normal operation or how horses would respond it is clear the facts were altered or made up to support their claims.
According to plaintiffs, Ridge and her horse then “bolted” into a fast, or full-out run, and the other horses followed her lead. Both plaintiffs stated that when their horses began running they were too surprised or shocked to yell and were just trying to hang on. According to Bret, his saddle slid to the right and he grabbed the saddlehorn and the back of the saddle as instructed but was still falling off his horse. He stated that his arm hit a tree so hard that he suffered a humeral fracture. He then fell from the horse.
However the wrangler and other people on the ride described the events quite differently.
According to Ridge, a trot is a fast walk, “slower than a canter, and much slower than a run or gallop.” Other experienced riders in the group characterized a trot in similar language.
One of the other participants attested that he checked the saddle after the fall and it was not loose.
On top of that the facts are just too absurd to be believable. No trail ride, no matter how good the riders are going to take off on a gallop. It is dangerous for riders of all abilities and horses. Second, normally, the first thing someone in trouble or seeing a risk does is scream. Thirdly, if you are holding on to the saddlehorn with one hand and the back of the saddle with the other, how does your arm fly out and strike a tree?
The trial court could not find facts in the plaintiff’s version of the facts that would rise to the level required to prove negligence under Michigan law. The release voided all ordinary negligence claims so only the gross negligence claim was viable.
The case was dismissed and the plaintiff’s appealed.
Analysis: making sense of the law based on these facts.
The basic claim of the plaintiff is there were issues of fact in dispute giving rise to enough for a jury to decide.
The first issue the court addressed was the witness statements, but not directly. Rather the court looked at what a witness may say. Basically it is about anything as long as it is relevant to the case. Lay witnesses, witnesses that are not qualified as an expert witness, can provide opinions.
As an initial matter, plaintiffs’ testimony was admissible because it was based on their personal observations and perceptions. MRE 602. To the extent that plaintiffs’ testimony merely amounted to opinion, such testimony would nevertheless be admissible evidence. MRE 701. “MRE 701 allows opinion testimony by a lay witness as long as the opinion is rationally based on the perception of the witness and helpful to a clear understanding of his testimony or a fact in issue.” “Once a witness’s opportunity to observe is demonstrated, the opinion is admissible in the discretion of the trial court, and the weight to be accorded the testimony is for the jury to decide.” Moreover, laypersons are permitted to testify regarding speed. Therefore, that plaintiffs lacked experience with horses merely goes to the weight of their testimony not to its admissibility.
So no matter how farfetched or contrived the statements of a witness, if they cannot be proved as false, they are admitted into court.
The court then looked at gross negligence in Michigan. “…gross negligence should be defined as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.”
Since under Michigan and most other (if not all) state laws a release does not void a claim for gross negligence, the only claims left of the plaintiff were the gross negligence claims.
The Michigan Equine Liability act allows the use of a release by horse owners.
§ 691.1666. Notice; posting and maintenance of signs; contract; contents of notice.
(2) A written contract entered into by an equine professional for providing professional services, instruction, or rental of equipment, tack, or an equine to a participant, whether or not the contract involves an equine activity on or off the location or site of the equine professional’s business, shall contain in clearly readable print the warning notice set forth in subsection (3).
The court pointed out that the act did not provide protection for the “equine professional.” As such, the only claims available to the plaintiff were the claims for gross negligence.
The court then found that the plaintiff’s claims if viewed in a light most favorable to them could be found to be valid to prove a claim of gross negligence.
We conclude that viewing the evidence in the light most favorable to plaintiffs, reasonable minds could differ regarding whether her conduct of taking a totally inexperienced rider on a fast ride was so reckless as to demonstrate a substantial lack of concern for whether an injury resulted.
There is a dissenting opinion that found the trial court was correct in its analysis of the facts. However the majority opinion found that the issue at trial in this case was the decision to speed up the ride.
However, in our collective opinion, our point of departure from our esteemed colleague’s dissenting opinion is the trail guide’s decision to speed up the pace when plaintiff had never ridden a horse before. For a first time rider, yelling “Whoa Nellie” or in this instance, “Whoa Tye” hoping to slow the horse down or to obtain the trail guide’s attention for help could be difficult.
The court went on to explain its reasoning.
Ridge was in control of the horses’ speed, as the guide riding the lead horse. And Bret’s horse “bolted” not because it was scared, which would clearly be an inherent risk of an equine activity, but because it was following Ridge’s lead. It cannot be disputed that she made the conscious decision to “speed things up a little bit,” knowing that Bret lacked the requisite experience to control the animal on which he rode. It would seem that it was indisputably an important part of Ridge’s job to look after the safety of those placed in her care.
The court sent the case back to trial.
A reasonable person could conclude that Ridge’s conduct of taking plaintiffs on a fast ride given their known lack of experience unreasonably added to the risks of the already dangerous activity and was thus so reckless as to demonstrate a substantial lack of concern for whether an injury resulted.
So Now What? (Motivational get them to do something post)
First the Michigan Equine Liability Statute only protects a horse owner from the actions of the horse. There was no protection for the actions of the wrangler or the stable. No matter how written all equine liability acts have been written in a similar way leaving wide open any lawsuit claiming the injury the plaintiff received was do the owner’s negligence.
As I have said in the past, Equine Liability Acts are 100% effective, since their enactment no horses have been sued. However the acts were so glaring deficient they have seemingly increased the number of lawsuits against horse owners.
This defendant wisely followed the requirements of the act and had guests sign a release.
The second issue is wild statements of the injured guests. Actually there are very little ways to counteract these statements except for one. If you can record either in writing, in the minds of witnesses or by a tape the statements of the possible plaintiffs. Keeping good notes on what they said might allow you to at least partially discredit later allegations, but only at trial.
Another real issue that came to light in this case is the other riders who were involved with their actions and opinions. One rider checked the saddle to see if it was tight and others opined they never went faster than a trot. Keeping the other witnesses and participants to an activity engaged and happy can be of infinite value to you later. Remember a Victim is not only the person who was hurt but anyone who saw the victim or was on the trip. These people may need care, maybe not first aid, but at least someone to help them deal with the issues they may be having.
Although those statements would have little value in pre-trial motions, their testimony at trial is the most valuable statements made on the stand. Jurors know that the other guests had a better view, a better understanding of what happened and no axe to grind or wallet to defend.
What do you think? Leave a comment.
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Hawkins, v Ranch Rudolph, Inc., 2005 Mich. App. LEXIS 2366
Posted: January 9, 2016 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Legal Case, Michigan, Release (pre-injury contract not to sue) | Tags: Equine, Gross negligence, Horse, Horseback Ride, Saddle, Trail Ride Leave a commentHawkins, v Ranch Rudolph, Inc., 2005 Mich. App. LEXIS 2366
Bret D. Hawkins and Erin Hawkins, Plaintiffs-Appellants, v Ranch Rudolph, Inc. and Circle H Stables, Inc., Defendants-Appellees.
No. 254771
COURT OF APPEALS OF MICHIGAN
September 27, 2005, Decided
NOTICE: [*1] THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.
PRIOR HISTORY: Grand Traverse Circuit Court. LC No. 03-022735-NO.
DISPOSITION: Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
JUDGES: Before: Meter, P.J., and Murray and Schuette, JJ.
OPINION
PER CURIAM.
Plaintiffs appeal as of right from the order granting defendants summary disposition. Bret Hawkins was injured after falling off a horse during a guided trail ride conducted by defendants. We reverse and remand.
I. FACTS
On June 18, 2002, plaintiffs, who were on their honeymoon, went to defendants’ stables to participate in a guided horseback trail ride. Defendants offered several different types of rides, based on age and level of experience. Plaintiffs chose the “Wrangler Ride,” which was described by defendants’ brochure as a “walk/trot ride” and had the minimum age requirement of eight-years-old. The ride consisted of a four-mile, single-file ride on wooded trails. Plaintiffs chose the “Wrangler Ride” because Bret had never ridden a horse before. Before participating, however, [*2] plaintiffs executed a release and indemnification waiver, in accordance with § 6 of the Equine Activity Liability Act (EALA), MCL 691.1661 et seq. MCL 691.1666.
Prior to beginning the ride, defendants’ trail guide, Kate Ridge, asked all the participants about their riding experience. Erin Hawkins indicated that she had only ridden a horse once before when she was eleven-years-old, and Bret indicated that he had never ridden a horse. In light of Bret’s lack of experience, Ridge assigned him “Tye,” a horse that defendants typically assign to beginning riders, including children, because he was calm and easy to ride. Plaintiffs were given basic instructions regarding how to stay on the horse and how to use the reins. According to Ridge, she saddled the horses before the ride and then double-checked all the saddles both before and after the horses were mounted. Bret claimed that after mounting Tye, he complained to Ridge that his saddle was not securely fastened, and she checked it again. Ridge stated that she did not recall Bret telling her his saddle was loose before the ride and she did not notice that it was loose while he [*3] was mounting the horse.
The ride started out at a slow walk, but after awhile, Ridge asked the participants if they wanted to go a little faster. The group responded, “Yes,” and Ridge told them to hold on to the saddlehorn with one hand and to put the other hand on the back of the saddle, and to yell if they wanted to slow down. According to plaintiffs, Ridge and her horse then “bolted” into a fast, or full-out run, and the other horses followed her lead. Both plaintiffs stated that when their horses began running they were too surprised or shocked to yell and were just trying to hang on. According to Bret, his saddle slid to the right and he grabbed the saddlehorn and the back of the saddle as instructed but was still falling off his horse. He stated that his arm hit a tree so hard that he suffered a humeral fracture. He then fell from the horse.
Defendants and Ridge denied that the horses were running. According to defendants, midway through the ride, Ridge asked the participants if they would like to begin a “short trot.” According to Ridge, a trot is a fast walk, “slower than a canter, and much slower than a run or gallop.” Other experienced riders in the group characterized [*4] a trot in similar language. After asking for but hearing no objections, defendants contended that Ridge then proceeded to trot the horses. Defendant noted that if anyone had stated that they did not want to trot, Ridge would not have began the trot and continued with the walk. Defendant also explained that horses are not permitted to engage in a “fast run” during rides.
Plaintiffs filed a complaint alleging gross negligence. Defendants moved for summary disposition under MCR 2.116(C)(7), (C)(8), and (C)(10), arguing, in pertinent part, that given the facts, even if there was a question of fact regarding whether defendants’ conduct amounted to negligence, reasonable jurors could not differ that defendants’ conduct did not amount to gross negligence. Defendant pointed out that Ridge attested that a couple seconds after commencing the trot she heard a scream and turned around to see that Bret had dropped his reins and was hanging on to the saddle horn with both hands, which she instructed him not to do. Ridge stated that Bret was losing his balance and leaning far to the right and he fell off his horse after hitting a tree branch. One of the other participants attested [*5] that he checked the saddle after the fall and it was not loose. Defendants argued that Bret’s injuries were not the result of defendants’ negligence, but of “the inherent risk of equine activity,” his own lack of experience, and his failure to follow Ridge’s instructions.
The trial court indicated that there was no question that plaintiffs’ allegations related to securing the saddle and instructing the participants only amounted to negligence. With respect to the allegation that the horses were made to run off at a high rate of speed, defendants continued to contend that there was no question of fact because Ridge and the other experienced participants stated that they began to trot, and the only people who said the horses began to run were plaintiffs, who had little or no riding experience. Plaintiffs responded that the differing accounts meant that there was a factual dispute, thereby precluding summary disposition. The court concluded that, given plaintiffs’ lack of experience compared with the experienced opinions of the guide and other participants, there was no genuine issue of fact that the horses were trotting not running. The court then concluded that even if it were a high [*6] speed run, reasonable minds could not differ that defendants’ conduct did not amount to gross negligence. Accordingly, the court granted defendants summary disposition.
II. STANDARD OF REVIEW
Plaintiffs now argue that the trial court erred in granting defendants summary disposition on the issue of gross negligence. We agree. [HN1] This Court reviews de novo a trial court’s ruling on a motion for summary disposition. Spiek v Dep’t of Transportation, 456 Mich. 331, 337; 572 N.W.2d 201 (1998).
[HN2] Under MCR 2.116(C)(7), a party may move for dismissal of a claim on the ground that a claim is barred because of a release. Neither party is required to file supportive material. Maiden v Rozwood, 461 Mich. 109, 119; 597 N.W.2d 817 (1999). Any documentation that is provided to the court, however, must be admissible evidence and must be considered by the court. MCR 2.116(G)(5). The plaintiff’s well-pleaded factual allegations, affidavits, or other admissible documentary evidence must be accepted as true and construed in the plaintiff’s favor, unless contradicted by documentation submitted by the movant. [*7] Maiden, supra at 119. [HN3] Under MCR 2.116(C)(10), a party may move for dismissal of a claim on the ground that there is no genuine issue with respect to any material fact and the moving party is entitled to judgment or partial judgment as a matter of law. The motion tests the factual support for a claim, and when reviewing the motion, the court must consider all the documentary evidence in the light most favorable to the nonmoving party. Id. at 119; see also MCR 2.116(G)(4).
III. ANALYSIS
As an initial matter, [HN4] plaintiffs’ testimony was admissible because it was based on their personal observations and perceptions. MRE 602. To the extent that plaintiffs’ testimony merely amounted to opinion, such testimony would nevertheless be admissible evidence. MRE 701. “MRE 701 allows opinion testimony by a lay witness as long as the opinion is rationally based on the perception of the witness and helpful to a clear understanding of his testimony or a fact in issue.” Sells v Monroe Co, 158 Mich. App. 637, 644-645;405 N.W.2d 387 (1987). “Once a witness’s opportunity to observe is demonstrated, [*8] the opinion is admissible in the discretion of the trial court, and the weight to be accorded the testimony is for the jury to decide.” Id. at 646-647. Moreover, laypersons are permitted to testify regarding speed. Mitchell v Steward Oldford & Sons, Inc, 163 Mich. App. 622, 629-630;415 N.W.2d 224 (1987). Therefore, [HN5] that plaintiffs lacked experience with horses merely goes to the weight of their testimony not to its admissibility.
The concept of gross negligence has developed in recent years, evolving from its common law roots. The common-law rule was originally invoked in Gibbard v Cursan, 225 Mich 311; 196 NW 398 (1923), to “circumvent the harsh rule of contributory negligence[,]” which at the time would have barred the plaintiff’s recovery. Jennings v Southwood, 446 Mich. 125, 129; 521 N.W.2d 230 (1994). The Gibbard definition was not crafted to be a higher degree of negligence; rather, it was simply “mere[] ordinary negligence of the defendant that followed from the negligence of the plaintiff.” Id. at 130. In actuality it was really just “the doctrine of last clear chance [*9] in disguise.” Id. at 132. Noting that such a construction was no longer viable after abandonment of the doctrine of contributory negligence in favor of pure comparative negligence and because it was not in keeping with the Legislature’s intent of limiting liability in certain contexts, the Jennings Court renounced further application of the Gibbard gross negligence definition. Id. at 132, 135
[HN6] Presented with the potentially arduous task of constructing a new definition of gross negligence in the context of the emergency medical services act (EMSA), MCL 333.20901 et seq., 1 the Jennings Court simply borrowed language from the government tort liability act (GTLA), MCL 691.1401 et seq. Jennings, supra at 135-136. The Court reasoned that the short cut was permissible given that the two statutory schemes shared the same purpose of insulating certain employees from liability for ordinary negligence. Id. at 136-137. Thus, the Court stated that in the context of the EMSA, gross negligence should be defined as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” Id. at 136; [*10] see MCL 691.1407(7)(a).
1 MCL 333.20965(1) states:
Unless an act or omission is the result of gross negligence . . ., the acts or omissions of a medical first responder, emergency medical technician, [etc.,] . . . do not impose liability in the treatment of a patient on those individuals or any of the following persons. . . .
Subsequently, the definition has been employed in other Michigan statutes limiting liability for ordinary negligence while still allowing liability for gross negligence. Xu v Gay, 257 Mich App 263, 269; 668 N.W.2d 166 (2003). [HN7] The GTLA definition of gross negligence adopted in Jennings, arises in statutory contexts where there is a public policy rationale for limiting certain parties’ liability while still affording the public recourse when the parties’ conduct rises to the level of recklessness described in the definition. See id. (citing various examples of statutes using the same definition [*11] of gross negligence). Noting that a contractual waiver of liability can similarly serve to insulate against ordinary negligence but not gross negligence, this Court expanded the scope of application of the Jennings/GTLA gross negligence definition, likewise adopting the definition to address a claim of gross negligence where the decedent signed a waiver purporting to release a privately-owned fitness center from liability. Id. The Xu Court concluded that summary disposition for the defendant was proper where, viewing the evidence in the light most favorable to the plaintiff, reasonable minds could not differ that the defendant’s mere ignorance of industry safety standards did not constitute conduct so reckless as to demonstrate a substantial lack of concern for whether an injury resulted to the decedent. Id. at 270-271. [HN8] “Evidence of ordinary negligence does not create a question of fact regarding gross negligence.” Id. at 271.
Here, plaintiffs executed a release and indemnification waiver, in accordance with § 6 of the EALA. MCL 691.1666. By signing the release, plaintiffs agreed that because plaintiffs were participants in an equine [*12] activity defendants were not liable for plaintiffs’ injury or death resulting from an inherent risk of the equine activity. MCL 691.1666(3); MCL 691.1663. “Inherent risk of an equine activity” is defined by the EALA as:
[HN9] a danger or condition that is an integral part of an equine activity, including, but not limited to, any of the following:
(i) An equine’s propensity to behave in ways that may result in injury, harm, or death to a person on or around it.
(ii) The unpredictability of an equine’s reaction to things such as sounds, sudden movement, and people, other animals, or unfamiliar objects.
(iii) A hazard such as a surface or subsurface condition.
(iv) Colliding with another equine or object. [MCL 691.1662(f).]
However, [HN10] the EALA provides exceptions to this general immunity for certain acts, including negligence on the part of the equine professional. 2 Thus, solely applying the EALA, plaintiffs’ claims of negligence and, by implication, gross negligence, would not be barred.
2 MCL 691.1665 states:
[HN11] Section 3 does not prevent or limit the liability of an equine activity sponsor, equine professional, or another person if the equine activity sponsor, equine professional, or other person does any of the following:
(a) Provides equipment or tack and knows or should know that the equipment or tack is faulty, and the equipment or tack is faulty to the extent that it is a proximate cause of the injury, death, or damage.
(b) Provides an equine and fails to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity and to determine the ability of the participant to safely manage the particular equine. A person shall not rely upon a participant’s representations of his or her ability unless these representations are supported by reasonably sufficient detail.
(c) Owns, leases, rents, has authorized use of, or otherwise is in lawful possession and control of land or facilities on which the participant sustained injury because of a dangerous latent condition of the land or facilities that is known to the equine activity sponsor, equine professional, or other person and for which warning signs are not conspicuously posted.
(d) Commits a negligent act or omission that constitutes a proximate cause of the injury, death, or damage.
[*13] However, the release that plaintiffs signed specifically relieved defendants of liability for negligence, and they were bound to the terms as agreed. Thus, in the face of a contractual waiver of liability insulating defendants against ordinary negligence, the trial court properly focused on whether defendants’ conduct constituted gross negligence. See Xu, supra at 269. Accordingly, following the precedent set by Xu, in addressing this claim of gross negligence, we consider “whether reasonable minds could differ regarding whether defendants’ conduct was so reckless as to demonstrate a substantial lack of concern for whether an injury resulted.” Xu, supra at 269. Accord Jennings, supra at 130.
[HN12] “Generally, once a standard of conduct is established, the reasonableness of an actor’s conduct under the standard is a question for the factfinder, not the court.” Tallman v Markstrom, 180 Mich. App. 141, 144; 446 N.W.2d 618 (1989). “However, if, on the basis of the evidence presented, reasonable minds could not differ, then the motion for summary disposition should be granted.” Vermilya v Dunham, 195 Mich. App. 79, 83; [*14] 489 N.W.2d 496 (1992). . . . These established precedents form the boundaries of our review. Accordingly, our task is to review the facts, in the light most favorable to the plaintiff, and determine the appropriateness of summary disposition in favor of the defendant. [Jackson v Saginaw Co, 458 Mich. 141, 146-147; 580 N.W.2d 870 (1998).]
Viewing the evidence in the light most favorable to plaintiffs, it should be accepted as true that after asking the trail ride participants if they wanted to speed up a little bit, Ridge then bolted into a high-speed run – or at the very least, a ride that was too fast given plaintiffs’ lack of experience. While the trial court concluded that Ridge’s conduct “would not be gross negligence even if it were a high speed run,” we disagree. We conclude that viewing the evidence in the light most favorable to plaintiffs, reasonable minds could differ regarding whether her conduct of taking a totally inexperienced rider on a fast ride was so reckless as to demonstrate a substantial lack of concern for whether an injury resulted.
In his dissent, our colleague Judge Murray emphasizes that the trail guide [*15] placed plaintiff (1) on a safe horse; (2) tightened the saddle; (3) provided safety instructions; (4) started slowly; and (5) sped up only after all riders including plaintiff agreed. We agree that the first four points referenced above appear reasonable. However, in our collective opinion, our point of departure from our esteemed colleague’s dissenting opinion is the trail guide’s decision to speed up the pace when plaintiff had never ridden a horse before. For a first time rider, yelling “Whoa Nellie” or in this instance, “Whoa Tye” hoping to slow the horse down or to obtain the trail guide’s attention for help could be difficult. Here, reasonable minds could indeed differ as to whether the conduct of the trail guide rose to the level of recklessness required to establish gross negligence. The question of whether the trail guide in this case demonstrated a substantial lack of concern for whether an injury resulted is a question of fact upon which reasonable minds could differ. Therefore, it is appropriate for a jury to make this determination.
By participating in the horseback ride, plaintiffs agreed to undertake the inherent risk of an equine activity. But, absent some unexpected [*16] event, Ridge was in control of the horses’ speed, as the guide riding the lead horse. And Bret’s horse “bolted” not because it was scared, which would clearly be an inherent risk of an equine activity, but because it was following Ridge’s lead. It cannot be disputed that she made the conscious decision to “speed things up a little bit,” knowing that Bret lacked the requisite experience to control the animal on which he rode. It would seem that it was indisputably an important part of Ridge’s job to look after the safety of those placed in her care. And asking an inexperienced horseback rider whether he objected to such a ride cannot insulate her conduct.
[HN13] Horseback riding, an activity in which people are exposed to all the inherent risks of dealing with an animal’s individual propensities and unpredictable nature, is a dangerous activity in and of itself. See MCL 691.1662(f). A reasonable person could conclude that Ridge’s conduct of taking plaintiffs on a fast ride given their known lack of experience unreasonably added to the risks of the already dangerous activity and was thus so reckless as to demonstrate a substantial lack of concern for whether an [*17] injury resulted. Therefore, summary disposition in this case was not appropriate.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Patrick M. Meter
/s/ Bill Schuette
DISSENT BY: MURRAY
DISSENT
MURRAY, J. (dissenting).
With great respect to my esteemed colleagues, I dissent from their decision to reverse the trial court’s grant of defendants’ motion for summary disposition.
As the majority correctly observes, in reviewing the propriety of granting defendants’ motion under MCR 2.116(C)(10), we, like the trial court, must view the admissible evidence in a light most favorable to plaintiffs, the non-moving parties. MCR 2.116(G)(4); Maiden v Rozwood,461 Mich. 109, 119; 597 N.W.2d 817 (1999). With the material facts viewed in that manner, we must then determine whether reasonable minds could differ as to whether the conduct at issue was so reckless as to demonstrate a substantial lack of concern for whether an injury would result. Xu v Gay, 257 Mich. App. 263, 270-271; 668 N.W.2d 166 (2003).
Where I depart from [*18] my colleagues is my conclusion that this evidence, under this standard, does not arise to the recklessness required to establish gross negligence. The material facts, viewed in a light most favorable to plaintiffs, established that the following events occurred at Ranch Rudolph:
1. Plaintiff Bret Hawkins (hereafter “plaintiff”), signed the waiver of liability, and informed the trail guide that he had never ridden a horse;
2. In response, the trail guide put plaintiff on the most cautious horse available, one usually utilized with children;
3. Once atop the horse, plaintiff informed the trail guide that his saddle was loose. The trail guide responded by attempting to tighten the saddle;
4. Before commencing the ride, the trail guide visually and orally instructed all the participants as to how to properly ride and handle the horse;
5. Once the trail ride commenced, the guide and all riders proceeded “extremely slow”;
6. Eventually, the trail guide asked the riders if they wanted to “go a little faster,” to which the group responded “yes”;
7. Before picking up the pace, the trail guide told the riders that they should yell if anyone wanted to [*19] slow down;
8. The trail guide, and all other horses, started on a “high speed run,” and less than a minute later, plaintiff was injured.
These material facts, taken from plaintiffs’ affidavits, answers to interrogatories and photos, do not establish that the trail guide acted so recklessly that she exhibited a substantial lack of concern for whether an injury would result. Rather, the evidence shows that, in response to plaintiff’s concerns, she (1) placed him on the safest possible horse; (2) attempted to further tighten the saddle; (3) instructed the riders on safety and riding procedures; (4) started the ride off “extremely slow;” and (5) sped up only after the riders – including plaintiffs – agreed to do so. Hence, the act at issue 1 was the trail guide’s decision to go too fast for plaintiff to handle, but not all the others, including his wife, who last rode a horse at age eleven. This misjudgment may have been a negligent one, but it did not reveal a recklessness with regard to plaintiff’s safety. Maiden, supra at 122-123(ordinary negligence does not amount to gross negligence). All the evidence of precautions taken, in fact, precludes reasonable [*20] jurors from so concluding. See, e.g., Lindberg v Livonia Public Schools, 219 Mich. App. 364, 368-369; 556 N.W.2d 509 (1996). 2
1 Plaintiff also complains about the trail guide’s inability to properly tighten the saddle. However, in my view, this is no more than an allegation of negligence, because there is no dispute that the trail guide attempted to tighten the saddle, but at best was unsuccessful in doing so.
2 As the trial court correctly observed, there seems to be a varying degree of decisions under this standard of liability. In my view, this results not from any inconsistency in determining the standard itself, but instead arises from the natural difference resulting from each judge’s own objective determination of whether the evidence meets that standard. Because judges do not always agree on the legal impact of the same undisputed set of facts, our decisions will at times necessarily result in different opinions.
I would affirm the trial court’s order.
/s/ [*21] Christopher M. Murray
Decisive Supreme Court Decision on the Validity of Releases in Oklahoma
Posted: May 27, 2013 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Oklahoma, Release (pre-injury contract not to sue) | Tags: Artillery Hunt Riding Stables, Elizabeth M. Schmidt, Equine, Fort Sill, Horse, OK, Oklahoma, Oklahoma Supreme Court, Release, stable, State supreme court, Supreme Court, Supreme Court of the United States, Texas, Trail Ride, United States, United States of America Leave a commentSchmidt v. United States of America, 1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38 (Okla 1996)
Case arose as a certified question from the US District Court from Western Oklahoma.
This is a request by the Federal District Court in Western Oklahoma for clarification on a legal point. When a Federal court has to apply state law and there are no decisions for the Federal court to rely upon, it certifies the question to the state Supreme Court for clarification. That is how this case arose.
The plaintiff went for a trail ride at Artillery Hunt Riding Stables at Fort Sill, Oklahoma. Because the stable was owned by the Army that is the reason for the suit to be brought in Federal Court and why the defendant is the USA.
While on the ride, the “ride leader” allegedly rode up behind the plaintiff and frightened her horse causing the horse to throw her. The plaintiff sued saying that the US “(1) is liable vicariously for the ride leader’s negligence and (2) is culpable for its own negligence in selecting and keeping an unfit ride leader.” Both claims are based in negligence.
The Federal Court could not find case law to rely upon to issue an opinion on the defendant’s defense of release so it sent the case the Oklahoma Supreme Court.
The Oklahoma Supreme Court did not decide the case. The court only used the facts as supplemental information in making its decision concerning releases in Oklahoma.
The Oklahoma looked at the question in two parts:
1. Whether, under Oklahoma law, a contractual exculpatory clause for personal injury is valid and enforceable?
2. Whether, under Oklahoma law, the exculpatory provisions contained in the Rental Riding Agreement are valid and enforceable and operate to bar the plaintiff’s negligence and negligent entrustment claims?
The court responded this way: “
We respond to the first question in the affirmative. We answer the second with a qualifying affirmative by noting that it applies if the certifying court finds that three preconditions to the clause’s enforcement are met: (1) the exculpatory clause’s language clearly, definitely and unambiguously displays an intent to insulate the United States from the type of liability the plaintiff seeks to impose; (2) no disparity of bargaining power existed between the two parties to the agreement containing the clause at the time it was executed; and (3) its effect would not violate public policy.
We note that exculpatory clauses cannot relieve one from liability for fraud, willful injury, gross negligence or violation of the law.
Summary of the case
This decision is a well-written look at how Oklahoma and many other states look at releases. Generally, releases are upheld in Oklahoma. However, although releases are “generally enforceable” releases are distasteful. The test in Oklahoma on whether a release is valid is:
(1) their language must evidence a clear and unambiguous intent to exonerate the would-be defendant from liability for the sought-to-be-recovered damages;
(2) at the time the contract (containing the clause) was executed there must have been no vast difference in bargaining power between the parties; and
(3) enforcement of these clauses must never
(a) be injurious to public health, public morals or confidence in administration of the law or
(b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy.
The court then described what clear and unambiguous intent was:
A contractual provision which one party claims excuses it from liability for in futuro tortious acts or omissions must clearly and cogently (1) demonstrate an intent to relieve that person from fault and (2) describe the nature and extent of damages from which that party seeks to be relieved. This is so not only when one assesses a party’s direct liability for negligence, but also when assaying whether the agreement’s terms embrace acts of an agent or servant of that party. In short, both the identity of the tortfeasor to be released and the nature of the wrongful act — for which liability is sought to be imposed — must have been foreseen by, and fall fairly within the contemplation of, the parties. The clause must also identify the type and extent of damages covered — including those to occur in futuro.
The court did differentiate between an exculpatory clause (release) which limits suits and clauses, which limit damages under Oklahoma law.
Bargaining power was described by the court in looking at releases as:
Courts consider two factors when called upon to ascertain the equality of the parties’ bargaining power, vis-a-vis each other, in the setting of a promissory risk assumption: (1) the importance of the subject matter to the physical or economic well-being of the party agreeing to the release and (2) the amount of free choice that party could have exercised when seeking alternate services.
The final issue, a release that violates public policy was described as:
While courts may declare void those portions of private contracts which contradict public policy, they must do so only with great caution. Two classes of exculpating agreements may be said to violate public policy: (1) those which — if enforced — patently would tend to injure public morals, public health or confidence in the administration of the law and (2) those which would destroy the security of individuals’ rights to personal safety or private property.
The court summed up its opinion on what a release must have under Oklahoma law as:
“any agreement having as its purpose the unequivocal exoneration of one party from negligent tort liability of another must identify both the putative tortfeasor and the category of recovery from which that actor would be relieved.
However, if any single requirement of the three requirements is not met by a release, then the release must fail.
So Now What?
You never find a decision that says this is what you must do to be legal. This decision from the Oklahoma Supreme Court explains step by step what an attorney must do to write a release.
Plaintiff: Elizabeth M. Schmidt
Defendant: United States of America (Artillery Hunt Riding Stables at Fort Sill, Oklahoma)
Plaintiff Claims: Negligence in the original Federal Action
Defendant Defenses: Release
Holding: Sent to the Federal Court for determination based on the decision here.
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Schmidt v. United States of America, 1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38 (Okla 1996)
Posted: May 27, 2013 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Legal Case, Oklahoma, Release (pre-injury contract not to sue) | Tags: Artillery Hunt Riding Stables, Assumption of risk, Elizabeth M. Schmidt, Equine, Federal Tort Claims Act, Fort Sill, Horse, Negligence, OK, Oklahoma, Oklahoma City, Release, stable, Trail Ride, United States, United States district court, United States of America Leave a commentSchmidt v. United States of America, 1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38 (Okla 1996)
ELIZABETH M. SCHMIDT, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
No. 85,545
SUPREME COURT OF OKLAHOMA
1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38
February 27, 1996, FILED
COUNSEL: Alan D. Rosenbaum, Lawton, OK, Reggie N. Whitten, Douglas A. Terry, MILLS & WHITTEN, Oklahoma City, OK, For Plaintiff.
Patrick M. Ryan, United States Attorney, Ronny D. Pyle, Assistant United States Attorney, Western District of Oklahoma, For Defendant.
JUDGES: KAUGER, V.C.J., HODGES, LAVENDER, SIMMS, HARGRAVE, OPALA, SUMMERS and WATT, JJ., concur; WILSON, C.J., concurs in part and dissents in part.
OPINION BY: OPALA
OPINION
[*872] CERTIFIED QUESTIONS FROM A UNITED STATES COURT
Opala, J.
The United States District Court for the Western [**2] District of Oklahoma [certifying court] certified the following questions pursuant to the Uniform Certification of Questions of Law Act, 20 O.S.1991 §§ 1601 et seq.:
“1. Whether, under Oklahoma law, a contractual exculpatory clause for personal injury is valid and enforceable?
2. Whether, under Oklahoma law, the exculpatory provisions contained in the Rental Riding Agreement are valid and enforceable and operate to bar the plaintiff’s negligence and negligent entrustment claims?”
We respond to the first question in the affirmative. We answer the second with a qualifying affirmative by noting that it applies if the certifying court finds that three preconditions to the clause’s enforcement are met: (1) the exculpatory clause’s language clearly, definitely and unambiguously displays an intent to insulate the United States from the type of liability the plaintiff seeks to impose; (2) no disparity of bargaining power existed between the two parties to the agreement containing the clause at the time it was executed; and (3) its effect would not violate public policy. We note that exculpatory clauses cannot relieve one from liability for fraud, [**3] willful injury, gross negligence or violation of the law. 1
1 See infra notes 8 and 15.
I
ANATOMY OF THE FEDERAL LITIGATION 2
2 The material accompanying the certified questions consists of the parties’ pleadings and motions filed in the certifying court. The factual recitals in the anatomy of the federal litigation were gleaned from this material and from the briefs submitted to this court.
Elizabeth M. Schmidt [plaintiff or Schmidt] went to the Artillery Hunt Riding Stables [Stables] at Fort Sill, Oklahoma 3 to engage in recreational horseback riding. Before participating in this activity she executed a Rental Riding Agreement [contract]. The contract contained the following clause [exculpatory clause or clause]:
“In consideration for being allowed to participate in Horse Rental, I hereby release [**4] the Artillery Hunt Center and its employees and/or ride leaders . . . and the United States Government from any liabilities or claims arising from my participation. I agree that I will never prosecute or in any way aid in prosecuting any demand, claim or suit against the United States Government for any loss, damage or injury to my person or property that may occur from any cause whatsoever as a result of taking part in this activity.” [Emphasis supplied.]
3 The Stables are admittedly an instrumentality of the U.S. Army.
Schmidt claims that, during the ride, a “ride leader” employed by the Stables negligently rode up behind her, frightened her horse and caused it to throw her to the ground, then fall on and injure her.
[*873] Schmidt brought a negligent tort complaint against the United States 4 alleging that the latter (1) is liable vicariously for the ride leader’s negligence and (2) is culpable for its own negligence in selecting and keeping an unfit ride leader. 5 By its summary [**5] judgment motion the United States interposed the exculpatory clause, by which it sought to defeat Schmidt’s claim.
4 Schmidt’s action invokes the Federal Tort Claims Act [FTCA], 28 U.S.C. §§ 2671 et seq. [HN1] By the FTCA’s terms the United States’ liability is measured according to the law of the state in which the wrongful act occurred. 28 U.S.C. § 2674.
5 Schmidt charges the United States with actual notice of the employee’s unfitness to lead the ride.
II
THE NATURE OF THIS COURT’S FUNCTION WHEN ANSWERING QUESTIONS FROM A FEDERAL COURT
[HN2] While the actionability of state-law claims identified in the submitted questions may be tested when answering the queries posed, it is not this court’s province to intrude (by the responses to be given) upon the federal court’s decision-making process. Because this case is not before us for decision,we refrain, as we must, from applying the declared state-law responses to the facts elicited or to be determined in the federal-court litigation (whether [**6] made by evidence adduced at trial or by acceptable probative substitutes, called “evidentiary materials”, for use in the summary adjudication process). 6 The task of analyzing the impact of today’s answers must be and hence is deferred to the certifying court.
6 Brown v. Ford, Okl., 905 P.2d 223, 226 n. 3 (1995); Bonner v. Oklahoma Rock Corp., Okl., 863 P.2d 1176, 1178 n. 3 (1993); Shebester v. Triple Crown Insurers, Okl., 826 P.2d 603, 606 n. 4 (1992).
III
THE PARAMETERS OF THE CLAUSE’S ENFORCEABILITY
[HN3] By entering into an exculpatory agreement of the type dealt with here 7 the promisor assumes the risks that are waived. 8 [*874] While these exculpatory promise based obligations are generally enforceable, 9 they are distasteful to the law. 10 For a validity test the exculpatory clause must pass a gauntlet of judicially-crafted hurdles: (1) their language must evidence a clear and unambiguous intent to exonerate the would-be defendant 11 from liability for the sought-to-be-recovered [**7] damages; 12 (2) at the time the contract (containing the clause) was executed there must have been no vast difference in bargaining power between the parties; 13 and (3) enforcement of these clauses must never (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy. 14
7 For a discussion of the difference between a contract clause totally exempting one from culpability and one which merely limits the financial extent of that liability, see Elsken v. Network Multi-Family Sec. Corp., Okl., 838 P.2d 1007, 1008 (1992); Fretwell v. Protection Alarm Co., Okl., 764 P.2d 149, 151 (1988). In both of those cases a burglar alarm company sought to limit its liability for loss due to theft of customers’ property via a liquidated damages provision. The propriety of similar liability-limiting contract clauses is subject to an analysis grounded in contract law that lies outside the realm of tort jurisprudence. See MacNeil, Power of Contract and Agreed Remedies, 47 CORNELL L. Q. 495 (1962).
[**8]
8 [HN4] Express assumption of risk occurs in those cases where the plaintiff expressly contracts with another not to sue for any future injuries which may be caused by that person’s negligence. Thomas v. Holliday by and through Holliday, Okl., 764 P.2d 165, 168 n. 8 (1988); Murray v. Ramada Inns, Inc., 521 So. 2d 1123, 1129 (La. 1988); Anderson v. Ceccardi, 6 Ohio St. 3d 110, 451 N.E.2d 780, 783 (1983). The terms of RESTATEMENT (SECOND) OF TORTS § 496B (1965) provide:
[HN5] “A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy.” [Emphasis added.]
For a discussion of the jurisprudential requisites for determining whether an exculpatory contract violates public policy, see infra Part IIIC. See also in this connection V. SCHWARTZ, COMPARATIVE NEGLIGENCE § 9.1 at 154 (1974). [HN6] Express consent, which might also be called “waiver” or “release”, will usually bar recovery by the plaintiff unless there is a statute or established public policy against it. Murray, supra at 1129. The two statutory provisions cited by Schmidt are inapposite here. The terms of the first, [HN7] 15 O.S.1991 § 212, provide:
“All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another or violation of the law, whether willful or negligent, are against the public policy of the law.” [Emphasis added.]
This section forbids agreements relieving one from liability for fraud, willful injury or violation of the law. Its terms cannot be read to embrace contracts affecting liability for simple negligence. We assume — for want of contrary notice from the federal-court record — that in this case there is no fraudulent or willful conduct.
The terms of the second section, [HN8] 15 O.S.1991 § 212.1, provide:
“Any notice given by a business entity which provides services or facilities for profit to the general public and which seeks to exempt the business entity from liability for personal injury caused by or resulting from any acts of negligence on its part or on the part of its servants or employees, shall be deemed void as against public policy and wholly unenforceable.” [Emphasis added.]
[HN9] This section’s terms apply to promises imposed without the promisor’s adequate knowledge through explanation or sans consideration. That is not the case here because the exculpatory contract in suit clearly amounts to more than a posted notice.
[**9]
9 Wolf v. Ford, 335 Md. 525, 644 A.2d 522, 525 (1994); Colgan v. Agway, Inc., 150 Vt. 373, 553 A.2d 143, 145 (Vt. 1988); Harris v. Walker, 119 Ill. 2d 542, 116 Ill. Dec. 702, 519 N.E.2d 917, 919 (1988); Rawlings v. Layne & Bowler Pump Company, 93 Idaho 496, 465 P.2d 107, 110 (1970); Henry v. Mansfield Beauty Academy, Inc., 353 Mass. 507, 233 N.E.2d 22, 24 (Mass. 1968); Ciofalo v. Vic Tanney Gyms, Inc., 10 N.Y.2d 294, 177 N.E.2d 925, 926, 220 N.Y.S.2d 962 (1961).
10 Gulf C&S Ry. Co. v. Anderson, 120 Okla. 60, 250 P. 500, 502 (1926).
11 Colgan, supra note 9 at 145; Jones v. Dressel, 623 P.2d 370, 378 (Colo. 1981); Anderson, supra note 10 at 502.
12 Anderson, supra note 10 at 502.
13 Salt River Project Agr. v. Westinghouse Elec., 143 Ariz. 368, 694 P.2d 198, 213 (1985); Elsken, supra note 7 at 1010-1111.
14 Shepard v. Farmers Insurance Co., Okl., 678 P.2d 250, 251 (1984). See also Thomas, supra note 8 at 168 n. 7; Fisk v. Bullard, 205 Okla. 502, 239 P.2d 424, 427 (1951); Anderson, supra note 10 at 502. See also in this connection Harris, supra note 9 at 909; Salt River, supra note 13 at 213; Belger Cartage Serv., Inc., v. Holland Const. Co., 224 Kan. 320, 582 P.2d 1111, 1119 (1978); Ciofalo, supra note 9 at 926. 15
[**10] [HN10]
The clause will never avail to relieve a party from liability for intentional, willful or fraudulent acts or gross, wanton negligence. 15
15 Wolf supra note 9 at 528; Jones, supra note 11 at 376; Manhattan Co. v. Goldberg, 38 A.2d 172, 174 (D.C. 1944).
A. Clear and Unambiguous Description of Parties and Damages
[HN11] A contractual provision which one party claims excuses it from liability for in futuro tortious acts or omissions must clearly and cogently (1) demonstrate an intent to relieve that person from fault and (2) describe the nature and extent of damages from which that party seeks to be relieved. This is so not only when one assesses a party’s direct liability for negligence, but also when assaying whether the agreement’s terms embrace acts of an agent or servant of that party. In short, both the identity of the tortfeasor to be released and the nature of the wrongful act — for which liability is sought to be imposed — must have been foreseen by, and fall [**11] fairly within the contemplation of, the parties. 16 The clause must also identify the type and extent of damages covered — including those to occur in futuro. 17
16 Anderson, supra note 10 at 502.
17 Anderson, supra note 10 at 502.
B. Bargaining Power’s Parity Level
[HN12] Courts consider two factors when called upon to ascertain the equality of the parties’ bargaining power, vis-a-vis each other, in the setting of a promissory risk assumption: (1) the importance of the subject matter to the physical or economic well-being of the party agreeing to the release and (2) the amount of free choice that party could have exercised when seeking alternate services. 18
18 Goldberg, supra note 15 at 174-175. See Trumbower v. Sports Car Club of America, Inc., 428 F. Supp. 1113, 1117 (W.D. Okla. 1976).
[**12] [*875] C. The Element Whose Presence Makes the Exculpation Not Violative of Public Policy 19
19 [HN13] In the context of an exculpatory clause’s validity, “public policy” means that which inhibits anything injurious to the good of all. The term is applied here in a sense broader than that used when scrutinizing for conformity to “public policy” wrongful-termination claims pressed by discharged at-will employees. Cameron & Henderson v. Franks, 199 Okla. 143, 184 P.2d 965, 972 (1947). For cases that deal with claims by discharged at-will employees see Groce v. Foster, Okl., 880 P.2d 902, 904 (1994); Gilmore v. Enogex, Inc., Okl., 878 P.2d 360, 364 (1994); Burk v. K-Mart Corp., Okl., 770 P.2d 24, 28-29 (1989).
[HN14]
While courts may declare void those portions of private contracts which contradict public policy, 20 they must do so only with great caution. 21 Two classes of exculpating agreements may be said to violate public policy: (1) those which — if enforced — patently would tend to injure public [**13] morals, public health or confidence in the administration of the law and (2) those which would destroy the security of individuals’ rights to personal safety or private property. 22
20 Hargrave v. Canadian Valley Elec. Co-op., Okl., 792 P.2d 50, 59 (1990).
21 Shepard v. Farmers Insurance Co., Okl., 678 P.2d 250, 251 (1984); Johnston v. J.R. Watkins Co., 195 Okla. 341, 157 P.2d 755, 757 (1945); Camp v. Black Gold Petroleum Co., 189 Okla. 692, 119 P.2d 815, 817-818 (1941).
22 Shepard, supra note 21 at 251; Anderson v. Reed, 133 Okla. 23, 270 P. 854, 856 (1928). An example of an exculpatory clause injurious to public health is afforded by an agreement exonerating a common carrier from liability for negligence. See Pine Belt Lumber Co. v. Riggs, 80 Okla. 28, 193 P. 990, 996-997 (1920).
IV
SUMMARY
[HN15] National jurisprudence teaches that parties may contractually allocate the risk of future harm. The exercise of this power is conditional; any agreement having as its purpose [**14] the unequivocal exoneration of one party from negligent tort liability of another must identify both the putative tortfeasor and the category of recovery from which that actor would be relieved. The parties must have bargained for their exchange on a level playing field — the level to be measured by the seriousness of the contract’s subject matter and the options available to the person giving up the right to sue. If the clause is to pass the test’s muster, the assumed obligation cannot be deemed to have brought about a result perceived as harmful to the principles of “public policy”. 23
23 See supra note 19.
The validity of the Schmidt/Stables exculpatory clause in suit depends on the outcome of the fact-finding investigation to be conducted in the certifying court. 24 If — under the test we announce today — that court should determine that any single requirement for the clause’s enforceability has not been met, its decision could not uphold the contract and exonerate the United [**15] States.
24 Promise-based obligations of the type dealt with here are treated as the promisor’s risk assumption. See supra Part III. [HN16] The terms of ART. 23, § 6, OKL.CONST., provide in pertinent part:
“The defense of . . . assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury.” [Emphasis added.]
[HN17] The terms of ART. 23, § 8, OKL.CONST., provide:
Any provision of a contract, express or implied, made by any person, by which any of the benefits of this constitution is sought to be waived, shall be null and void.” [Emphasis added.]
Today we merely define the parameters of an exculpating clause’s enforceability. Whether, as applied to this case, the provision presents a disputed law question or also a disputed fact question is to be decided by the certifying court.
CERTIFIED QUESTIONS ANSWERED.
KAUGER, V.C.J., HODGES, LAVENDER, SIMMS, HARGRAVE, OPALA, SUMMERS and WATT, JJ., concur;
WILSON, [**16] C.J., concurs in part and dissents in part.
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Equine laws stop suit against horse, outfitter still sued.
Posted: October 31, 2012 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Montana | Tags: Equestrianism, Equine, Horse, Law, Montana, MT, Trail Ride, Trail riding Leave a commentThose familiar with the legal system are more likely to sue, and physicians are very familiar with the system.
The plaintiff and her family went to Montana to vacation and rented horses from the defendant. During the ride, the plaintiff fell off her horse. The article describes numerous damages and loss of income claims before getting to the legal issues of the case. I suspect the plaintiff’s attorney is pushing this issue or even issued a press release to validate to the jury pool how valuable this claim is. (Jury Pool is the group of potential jurors who could be called for a trial.)
Before the trail ride the plaintiff told the guide she had previous experience. Allegedly, she told the guide before the start that her horse was difficult to control. During the ride, her horse “crowded” the horse in front of her. “Eventually, the horse in front of Plaskon [plaintiff] got tired of being crowded and kicked at her horse, which started bucking and threw her off.” The allegations went on to claim:
She claims the lodge, and outfitters were negligent and displayed “willful or wanton disregard” for her safety. Along with seeking actual damages for her medical costs and loss of income, [plaintiff] is asking to be awarded punitive damages.
The defense attorney responded to the reporter by stating that the plaintiff “…signed a waiver of liability and indemnity agreement prior to going on the horseback ride.”
The first problem not brought up in this article is Montana has two statutes that seem to prohibit the use of a release, Mont. Code Anno., § 27-1-701 Liability for negligence as well as willful acts. Which states:
Except as otherwise provided by law, each person is responsible not only for the results of the person’s willful acts but also for an injury occasioned to another by the person’s want of ordinary care or skill in the management of the person’s property or person except so far as the person has willfully or by want of ordinary care brought the injury upon the person.
“Want of ordinary care or skill” is a term that could be closely defined as negligence.
And Mont. Code Anno., § 28-2-702 Contracts that violate policy of law — exemption from responsibility.
All contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.
This statute says that releases, or waivers, are void in Montana. (See States that do not Support the Use of a Release.) And although in most states, a definition of willful injury would mean greater than normal negligence, the statute later says negligence.
Montana does have an equine liability statute that may provide a defense in this case.
Where is this going? Its litigation so that it can go anywhere. Probably, the case will settle, but possibly we may see this posted here after a trial or hearing, and the case is appealed. Either way there was a probably a lack of understanding or too much involvement in the legal profession. (See People familiar with the legal system are more likely to sue) Physicians between training and experience are very familiar with the legal system and in some surveys is the most frequent group of plaintiffs in the US. Lawyers and people with lawyers in their family are also very likely to sue. Be aware when dealing with groups of people familiar with the legal system.
Furthermore, understand what state you are in and what laws may apply to your situation.
See Chico Hot Springs, outfitter sued by surgeon who fell from horse
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