Audley v. Melton

• Citation: 138 N.H. 416,640 A.2d 777
• Decision Date: 12 April 1994
• Docket Number: No. 93-188,93-188
• Parties: Shannon AUDLEY v. Bill MELTON Individually and d/b/a Bill Melton Productions.
• Court: New Hampshire Supreme Court

Page 777

640 A.2d 777

138 N.H. 416

Shannon AUDLEY v. Bill MELTON Individually and d/b/a Bill Melton Productions.

No. 93-188.

Supreme Court of New Hampshire.

April 12, 1994.

Wiggin & Nourie, P.A., Manchester (John P. Kacavas, on the brief, and Ronald W. Cox, Jr. orally), for plaintiff.

Devine, Millimet & Branch, P.A., Manchester (Andrew D. Dunn, on the brief, and Julie Ann Boyle orally), for defendant.

HORTON, Justice.

The plaintiff, Shannon Audley, appeals from a grant of summary judgment by the Superior Court (Morrill, J.), arguing that two exculpatory contracts she signed did not release the defendant from liability for his own negligence. We reverse.

The plaintiff, a professional model, was bitten on the head by an adult male lion with which she had been posing during a photography shoot at the studio of the defendant, Bill Melton. The plaintiff filed a negligence action alleging, inter alia, that the defendant failed to take any precautionary action despite noticing that the plaintiff's hair was agitating the lion. The defendant moved to dismiss, arguing that the suit was barred by either of two releases signed by the plaintiff. The first release, which primarily addressed proprietary rights to the photographs and negatives, included a sentence that read: "I further release the photographer, his/her agents or assigns from any and all liability whatsoever." The second release, on which both parties have principally focused, provides in full:

"I Shannon Audley realize that working with the [sic ] wild and potentially dangerous animals (i.e. lion, white tiger, hawk) can create a hazardous [sic ] situation, resulting in loss of life or limb. I take all responsibility upon myself for any event as described above that may take place. I hold Bill Melton and T.I.G.E.R.S. or any of their agents free of any or all liability. I am signing this of my on [sic ] free will."

The plaintiff objected to the motion to dismiss, alleging upon "information and belief" that the defendant knew the lion had been involved in previous attacks. She argued that the releases were unenforceable because she was fraudulently induced into signing them by the defendant's assurances that the lion was safe. She also argued that even if the releases were enforceable, they did not release the defendant from liability for his own negligence. After the Trial Court (Murphy, J.) denied the motion to dismiss, the defendant filed a motion for summary judgment coupled with an affidavit stating that he had no knowledge of any prior attack by the lion. The Trial Court (Morrill, J.) conditionally granted the motion, giving the plaintiff ninety days to produce evidence that the defendant knew of any previous attack. After the plaintiff failed to produce such evidence, the trial court entered final judgment.

On appeal, the plaintiff makes several arguments: (1) that the releases are unenforceable as against public policy; (2) that even if enforceable, they do not release the defendant from liability for his own negligence; and (3) that even if the releases reached the defendant's own negligence, summary judgment was improper because she should have been afforded more time to discover evidence that would support her fraudulent inducement argument. We hold that the releases are enforceable but do not release the defendant from liability for his own negligence. Accordingly, we do not reach the plaintiff's third argument.

This case is controlled by the principles we announced in Barnes v. New Hampshire Karting Association, 128 N.H. 102, 509 A.2d 151 (1986). In Barnes we explained that exculpatory contracts will not be enforced if they contravene public policy either because a special relationship exists or there is a disparity in bargaining power. Id. at 106-07, 509 A.2d at 154. Those exculpatory contracts that do not offend public policy and are enforceable will still be strictly construed against the defendant. Id. at 107, 509 A.2d at 154. Thus, in order to effectively release a defendant from liability for his own negligence, "the contract must clearly state that the defendant is not responsible for the consequences of his negligence." Id. There is no requirement that the term "negligence" or any other magic words appear in the release, see Commercial Union Assurance Co. v. Brown Co., 120 N.H. 620, 623, 419 A.2d 1111, 1113 (1980), "[a]s long as the language of the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant's negligence." Barnes, 128 N.H. at 107, 509 A.2d at 154.

We first hold that the exculpatory contracts in this case are not void as against public policy....