Court of Appeals of Ohio, Tenth District, 1996
1996 WL 52901, 1996 OhioApp.Lexis 389
Ms. Thompson signed a release from liability to take riding instruction in fulfillment of her physical education requirement at the defendant college. She was injured and claimed the college was liable. The trial court ruled in favor of the college.
The Court of Appeals sent the case back for a new decision. It found that the release from liability was too broad in its attempt to release anybody from claims by the student. Because the release was partially invalid, the trial court should take another look at the case.
NOTE: This case contains a good example of a bad release from liability form. Do not use it as a model for your form.
On October 19, 1994, Danielle Thompson filed suit against Otterbein College ("Otterbein"). She alleges that Otterbein had "breached its duty to provide a safe environment for riding instruction," and that as a result she was injured.
After service of process, Otterbein filed an answer in which it denied the existence of such a duty and further denied that it was negligent. The answer included several affirmative defenses, but made no mention of the existence of a liability release.
Apparently, discovery proceeded. Then Otterbein filed a motion for summary judgment. The motion alleged a wide range of facts, but did not provide a basis for these allegations. Appended to the motion was a series of documents which were the subject of mention in the motion, but were not part of an affidavit, an exhibit to a deposition or otherwise authenticated.
Counsel for Ms. Thompson filed a memorandum contra the motion for summary judgment. Appended to the memorandum was an affidavit signed by Ms. Thompson in which she indicated that she had been student at Otterbein, that she had signed a document entitled Riding Agreement and Liability Release, but that she had not intended to release Otterbein from liability for its own negligence. She intended only to release Otterbein from liability resulting from her own negligence.
Otterbein responded with a memorandum to which was appended an affidavit of Stephen R. Storck, the Vice-President of Business Affairs for Otterbein. Mr. Storck alleged that everyone who worked at the Otterbein College Equine Facility were employees of Otterbein.
The trial judge granted summary judgment, finding that:
" *** The release is neither vague nor ambiguous. It was voluntarily entered into, and foreseeable that injury could result if a horse were 'spooked,' as alleged here, by negligence of Defendant's employees. Within the facts established by the Rule 56 materials of record, Otterbein College was a proprietor of recreational activities. By voluntarily executing the release, Plaintiff both assumed the risk of her injuries and released Defendant from negligence of the type involved here."
Ms. Thompson ("appellant") has filed a timely appeal, assigning four errors for our consideration:
"First Assignment of Error: The trial court erred as a matter of law in considering deposition testimony contained in Otterbein's Motion for Summary Judgment in deciding whether to grant Otterbein's Motion for Summary Judgment because the depositions had not been timely filed with the court, and therefore did not constitute any portion of the evidence in this case which could properly be considered under Oh. R. Civ. P. 56(C).
"Second Assignment of Error: The trial court erred as a matter of law in granting Otterbein College's Motion for Summary Judgment on the ground that Otterbein College is a 'proprietor of recreational activities.'
"Third Assignment of Error: The trial court erred as a matter of law in holding that the release was binding upon Thompson. Exculpatory releases from any future negligence on behalf of a college arising from a mandatory physical education course are invalid as a matter of law because they are unconscionable and violate public policy.
"Fourth Assignment of Error: The trial court erred as a matter of law in holding that the release was binding upon Thompson. The language of the release is ambiguous and includes claims which were not contemplated by the parties when it was signed. Thus, a genuine issue of material fact exists regarding the parties intent with respect to the terms of the contract, precluding summary judgment for Otterbein."
This case presents a unique procedural posture. Summary judgment was granted based upon information which was not before the court in the form required by Civ.R. 56(C). Civ.R. 56(C) reads in pertinent part:
"Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule."
Summary judgment was granted based upon an affirmative defense which was not plead in the answer. The original complaint based its claim of liability upon an alleged duty to provide a safe environment for riding instruction, a duty which we do not find to be capable of fulfillment no matter how diligent a horseback riding stable may be. In short, the duty of care alleged in the complaint is not the duty of care applicable in determining whether or not people affiliated with a stable have been negligent.
Because of the many problems we perceive with the record before us, our task is made significantly more difficult.
Turning to the first assignment of error, appellant contends that deposition testimony must be filed with the trial court before it can be given the effect of acceptable evidence. Appellant argues that the trial court erred in considering deposition testimony that was not filed as part of the record in this case. Appellee counters by stating appellant never moved to strike nor objected to any reference to such testimony and, therefore, waived this argument on appeal.
Appellant cites Putka v. Parma (1993), 90 Ohio App.3d 647, 630 N.E.2d 380, motion to dismiss certified conflict appeal sustained in 1994, 68 Ohio St.3d 1459, in support of her argument. In Putka, the Cuyahoga County Court of Appeals stated that a deposition transcript must be filed with the court or otherwise authenticated before it can be given the force of legally acceptable evidence. Id. at 649, citing Mitchell v. Ross (1984), 14 Ohio app.3d 75, 76, 470 N.E.2d 245. However, at least three other cases from the Eighth District have held that where there has been no objection to uncertified documents or unfiled depositions in the context of summary judgment, any error in considering such evidence is waived. See Brown v. Insurance Co. (1978), 63 Ohio App.2d 87, 90-91, 409 N.E.2d 253; Rodger v. McDonald's Restaurants of Ohio, Inc. (1982), 8 Ohio App.3d 256, 258, fn. 7, 456 N.E.2d 1262; and Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78, 83, 523 N.E.2d 902.
Putka never mentions these cases. Putka, however, can be distinguished from the other cases coming out of the Eighth District. In Putka, the court never had to reach the issue of whether or not the trial judge should have considered the unfiled deposition testimony or whether or not any such error could be waived. The Putka court found that the complaint in and of itself established a genuine issue of material fact. Putka at 649. Therefore, any alleged problem with evidence submitted in support of a party's memorandum contra a motion for summary judgment would not affect the finding of a genuine issue of material fact.
In addition, this court and the overwhelming majority of other courts have held that the failure to object to the propriety of evidence submitted in support of or in defense to a motion for summary judgment constitutes a waiver of any alleged error in the consideration of such evidence. See Lehr v. Spangler (Sept. 24, 1991), Franklin App. No. 91AP-245, 1991 Ohio App. LEXIS 4595, unreported (1991 Opinions 4543); Miller v. S.C.O.A. Industries, Inc. (Mar. 19, 1991), Franklin App. No. 90AP-768, 1991 Ohio App. LEXIS 1239, unreported (1991 Opinions 1120); Boydston v. Norfolk S. Corp. (1991), 73 Ohio App.3d 727, 598 N.E.2d 171; and Gaumont v. Emery Air Freight Corp. (1989), 61 Ohio App.3d 277, 572 N.E.2d 747.
If the problems were merely the lack of deposition in the record, we would be inclined to overrule this assignment of error. However, the record before us contains virtually nothing upon which the trial court could base a ruling on a summary judgment motion. Indeed, neither party fulfilled this obligation contemplated by the third paragraph of the syllabus to Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, which reads:
"A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial. (Celotex v. Catrett , 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548, approved and followed.)"
Under the circumstances, we sustain the first assignment of error.
Our ruling as to this assignment of error does not, however, foreclose the trial court from addressing a new motion or motions for summary judgment if appropriate evidentiary support is provided.
Because our ruling on the first assignment of error necessitates further action by the trial court, we will address the remaining assignments of error and hopefully be of assistance to both that court and the parties to this action.
In her second assignment of error, appellant contends that the trial court erred in finding appellee was a proprietor of recreational activities. Appellant points to a line of cases in which courts have held that a participant in and the properties of recreational activities are free to contract to relieve the proprietor of liability for damages caused by the proprietor's negligence. See Cain v. Cleveland Parachute Training Center (1983), 9 Ohio App.3d 27, 457 N.E.2d 1185; Seymour v. New Bremen Speedway (1971), 31 Ohio App.2d 141, 287 N.E.2d 111; Hine v. Dayton Speedway Corp. (1969), 20 Ohio App.2d 185, 252 N.E.2d 648. Appellant argues that these cases are distinguishable from the case at bar because none of the participants in these cases were required to participate in the activity -- -- they voluntarily chose to participate. Appellant, on the other hand, was required to take a physical education course in order to graduate.
Appellee counters by suggesting that appellant was not required to take the equestrian course and that appellant voluntarily chose the class in order to fulfill the physical education requirement. Appellee also contends that it, like the businesses in the above cases, was a business proprietor who required tuition be paid for courses. We lack the record to evaluate appellee's contentions. If the allegations are true that appellant was not required to take the equestrian course, and that she chose this course, she could voluntarily agree to release liability before taking the course. The fact that appellant was a student at the college as opposed to a non-student who takes riding lessons would not change appellee's status. Therefore, the trial court did not err in granting appellee's motion for summary judgment in part, based on a finding that appellee was a proprietor of recreational activities and free to contract as such. Accordingly, appellant's second assignment of error is overruled.
In her third assignment of error, appellant contends that the release should not have been enforced against her because it is unconscionable and violates public policy. The crux of appellant's argument is that she was required to take a physical education course in order to graduate, and she was required to sign the release in order to take the equestrian course. Given this, appellant contends she did not have equal bargaining power, that this was an adhesion contract, and that she had "no choice but to sign the release." (Appellant's brief at 24.) We disagree with appellant's arguments.
Contrary to appellant's assertions, this was not an adhesion contract. The situation might be different had appellee required all students to sign such a release for all physical education courses. There is no evidence that this was the case. As stated above, apparently appellant was not required to take the equestrian course. As such, appellant would not be in such an unequal bargaining position as to make a release unconscionable. She could have chosen not to sign the release and chosen instead to take another physical education course.
In addition, and as discussed previously, apparently appellee is a business that could contract with those paying for its services to limit its liability for negligence. Thus, no public policy principle would be violated in doing so.
Accordingly, appellant's third assignment of error is overruled.
In her fourth assignment of error, appellant contends that the release was not binding because the language is ambiguous and includes claims that were not contemplated by the parties at the time of its execution. Appellant asserts that for these reasons, a genuine issue of material fact regarding the intent of the parties existed, and summary judgment was, therefore, inappropriate. Appellant sets forth various reasons in support of her contention that the contract language is ambiguous.
As we have already noted above, releases from liability for negligence are generally valid in the context of recreational activities. However, such releases cannot relieve the proprietor from liability due to wanton or willful misconduct. Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 90, 585 N.E.2d 384. In addition, such contracts purporting to relieve a party for his or her negligence must be expressed in terms that are clear and unequivocal or they are unenforceable. Tanker v. N. Crest Equestrian Ctr. (1993), 86 Ohio App.3d 522, 525, 621 N.E.2d 589, citing Kay v. Pennsylvania Rd. Co. (1952), 156 Ohio St. 503, 103 N.E.2d 751; Rogers v. Ayjay Dev., Inc. (Nov. 27, 1991), Auglaize App. No. 2-91-2, 1991 Ohio App. LEXIS 5738, unreported. Such contracts also must be strictly construed. Cain at 28. Hine at 189.
Here, the language in question is as follows:
"LIABILITY RELEASE: That I understand that, except in the event of THIS STABLE's wanton and willful negligence, I am responsible for bodily injury or property damage which I or my child or legal ward should sustain on THIS STABLE's premises and/or trails and/or while riding a horse, and/or while in transit to or at horse shows, trail rides or similar expeditions, and for any time I or my child or legal ward shall lose from employment or school or other activity, and for medical expenses or any other expenses incurred because of such bodily injury or property damage; and that I hereby, for myself, my heirs, administrators and assigns release and discharge the owners, operators, and sponsors of THIS STABLE and their respective servants, agents, officers and all other participants of and from all claims, demands, actions and causes of action for such injuries sustained to my person, or that of my child or legal charge and/or property." (Emphasis added.)
There are several problems with this language. There are essentially two parts to this release. The first portion states that appellant is responsible for injury she should sustain on the premises, absent the stable's "wanton and willful negligence." The second portion, which consists of the language after the semi-colon and the word "and," states that appellant releases appellee "and all other participants" from "all claims *** for such injuries sustained to my person." (Emphasis added.) We will discuss the second portion of the release first.
This language purports to release appellee from all claims. In addition, it includes the release of "other participants." This portion of the release purports to have appellant release essentially everyone, including non-owners and non-employees, from any type of misconduct, whether it be negligent, wanton or willful conduct. It has been held that such a clause is so general that it becomes meaningless. See Tanker at 526. In addition, the above clause is so general that it includes claims of which appellant was ignorant and thus, were not within the contemplation of the parties at the time of the contract. See King v. United Skates of America (Nov. 10, 1994) Lake App. No. 93-L-199, 1994 Ohio App. LEXIS 5089. As discussed above, such contracts as the one at issue here can relieve a proprietor from liability for negligence but not willful or wanton misconduct. Although appellee did not have to expressly use the word "negligence" in its release, see Hine at 189, the release as a whole is such that the intent of the parties with regard to exactly what kind of liability was being released is not clear.
The first portion of the release contains the following language: "except in the event of THIS STABLE's wanton and willful negligence." There is no such thing as wanton or willful negligence. Tighe v. Diamond (1948), 149 Ohio St. 520, 524-525, 80 N.E.2d 122. Such terms are complete misnomers and cause great confusion. Id. We acknowledge that the practical result of a plaintiff asserting "wanton negligence" or "willful negligence" as used in the release would be that the plaintiff would have to show wantonness or willfulness. See Universal Concrete Pipe Co. v. Bassett (1936), 130 Ohio St. 567, 200 N.E. 843, paragraph one of the syllabus. We also note that appellant never asserted wantonness or willfulness, only negligence, as theories of liability. However, the use of such misnomers here adds to the confusing nature of the release.
In addition, it is unclear whether or not the exception for "wanton and willful negligence" applies to the second portion of the release.
As a whole, the release is at best confusing. As stated above, if such a release is not expressed in terms that are clear and unequivocal, the release can be unenforceable. Tanker at 525. However, given the case law on this subject, we believe the best route is for this matter to be remanded to the trial court in order to obtain additional information about the release. Accordingly, appellant's fourth assignment of error is sustained, if only because the information regarding the release is so sparse.
In summary, appellant's second and third assignments of error are overruled. Appellant's first and fourth assignments of error are sustained. The judgment of the Franklin County Court of Common Pleas is hereby reversed, and this cause is remanded for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
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