Hall v. Perry

• Decision Date: 30 June 2009
• Docket Number: No. S-08-0167.,S-08-0167.
• Citation: 211 P.3d 489,2009 WY 83
• Parties: Kenneth HALL, Appellant (Plaintiff), v. Bill PERRY and Hidden Creek Outfitters, Appellees (Defendants).
• Court: Wyoming Supreme Court

211 P.3d 489

2009 WY 83

Kenneth HALL, Appellant (Plaintiff), v. Bill PERRY and Hidden Creek Outfitters, Appellees (Defendants).

No. S-08-0167.

Supreme Court of Wyoming.

June 30, 2009.

Representing Appellant: Matthew D. Winslow of Keegan & Winslow, P.C., Cody, Wyoming.

Representing Appellee: Patrick J. Murphy and Lori L. Gorseth of Williams, Porter, Day & Neville, P.C., Casper, Wyoming. Argument by Mr. Murphy.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

HILL, Justice.

[¶ 1] Kenneth Hall was injured when he was thrown from a horse while participating in a deer hunt guided by Hidden Creek Outfitters. The district court ruled that a document signed by Mr. Hall entitled "Release of Liability and User Indemnity Agreement Hunting and Camping" (the Release) precluded his negligence action and granted summary judgment in favor of Bill Perry and Hidden Creek Outfitters. Mr. Hall argues that the Release was not enforceable because it was not supported by separate consideration. We conclude that the Release was part of the parties' original agreement and, therefore, separate consideration was not required to make it enforceable.

[¶ 2] We affirm.

ISSUES

[¶ 3] The dispositive question in this case is whether the district court properly ruled, as a matter of law, that the Release was enforceable without separate consideration.¹

FACTS

[¶ 4] Mr. Hall, a resident of North Carolina, and three of his friends planned a guided mule deer hunt in northwestern Wyoming in the fall of 2005. They contacted Bill Perry, the owner of Hidden Creek Outfitters, to act as their outfitter for the hunt. Hidden Creek Outfitters sent a "Letter Contract of Agreement" (hereinafter "Letter Agreement") to Mr. Hall. The Letter Agreement, signed by Mr. Hall (designated as "Client") on February 20, 2005, stated that Hidden Creek Outfitters (designated as "Outfitter") would provide him with a five-day guided hunt, preferably November 6 through 10, 2005. Hidden Creek Outfitters agreed to "stress safety throughout the hunt" and "[p]rovide professional, licensed guides" as well as other necessities such as food, lodging, etc. Mr. Hall agreed to "be personally responsible for each provision herein and sign each contract, agreement and attachment hereto." The Letter Agreement further provided:

2. ... Client will provide Outfitter a list as to his physical limitations, allergies, health and weight problems, required medications, and dietary restrictions when returning this contract. Client understands that notwithstanding any other provisions of this contract, Outfitter may, in his sole discretion return any fees and decline to accept Client for reasons stated on such form. CLIENT AGREES THAT HE ASSUMES THE RISK OF HUNTING BASED UPON ANY DISCLOSED OR UNDISCLOSED CODITION (sic) REQUIRED BY SUCH FORM.

3. FEES AND CONDITIONS

In consideration of the Outfitter providing the services as set forth hereinabove the Client agrees to pay the Outfitter the sum of $2500.00 [handwritten] plus a 3% forest service fee, in U.S. funds or money order, as follows:

A. Deposit of [$1000.00 crossed out and $500.00 written in] which shall be paid by the Client to the Outfitter with a signed copy of this agreement OR the contract will be null and void and in no way binding on the Outfitter unless accepted by him in his sole discretion....

B. The balance of the fee shall be paid in two (2) installments as follows:

(1) 50% of hunt cost, minus deposit, when tag is drawn

(2) Balance due 30 days prior to hunt.

....

G. In the event the Outfitter materially defaults in the performance of any portion of his obligations hereunder, due to his own fault, the Client, as his sole and exclusive remedy, either at law or equity, shall be entitled to the return of his fee in full upon demand....

4. DISCLOSURES, DISCLAIMERS, AND WAIVERS

The Client acknowledges that he has signed, understood and (sic) the Release and Indemnity Agreement, incorporated above, and further acknowledges that he understands that the risks associated with the primitive conditions of the hunt area, the elevation, weather conditions, unavailability of medical attention, travel by foot, vehicle, or horseback ... are substantial, and that while the Outfitter will attempt through ordinary and reasonable care to minimize the risks, such risks are specifically assumed by the Client.

5. MISCELLANEOUS

A. Any attachment or addendum hereto signed by the parties, or one party as required by the terms thereof, shall be a part of this agreement and be incorporated herein by reference as if set forth verbatim. In the event that any provision contained in such attachment or addendum is contrary to or inconsistent with any provisions set forth herein, the provisions of the attachment or addendum shall supersede and prevail over any such provision herein as to such inconsistency.

B. This agreement, including exhibits, schedules, attachments, and addenda attached hereto sets forth the entire understanding and agreement between the parties and supersedes any prior agreement, written or oral.

The signed Letter Agreement indicated that Mr. Hall had provided a $500.00 deposit.

[¶ 5] Mr. Hall's hunting party arrived at the lodge used by Hidden Creek Outfitters on November 5, 2005. They gathered around the dining table where a Hidden Creek Outfitters employee, Jim Keilholtz, gave them the Release. They were asked to read over the document, ask any questions, and then sign and initial it in the indicated places. The Release provided in relevant part:

I, [handwritten] Kenneth R. Hall (CLIENT) hereby acknowledge that I have voluntarily applied and contracted to participate in the sport or activity of hunting/camping from a primitive camp, with equipment and or services to be provided by BILL PERRY, D.B.A. HIDDEN CREEK OUTFITTERS/TETON WILDERNESS OUTFITTING, (OUTFITTER). By my initials hereon and at each place hereafter marked (INITIAL [handwritten] KRH) I have signified my agreement with and acceptance of the terms, statements, and conditions herein.

I UNDERSTAND AND AGREE that the described sport or activity and all other hazards and exposures connected with the activities conducted in the outdoors do involve risk and that I am cognizant of the risk and dangers inherent with hunting and camping, and in particular in the mountains of Wyoming and that I ... [am] fully capable of participating in the activities contracted for and willingly assume the risk of injury as my responsibility, including ... use of animals, ... collisions with trees, rocks, or other manmade or natural obstacles, whether they are obvious or not obvious. (INITIAL [handwritten] KRH).

.... I UNDERSTAND AND AGREE that any route or activity, chosen as a part of the hunting/camping trip in which I ... am participating may not be the safest but has or will be chosen for its interest, challenge, or best meeting the goals of the services for which I am contracting. Should animals ever be used or are present as a part of our activities, I ... understand that an animal irrespective of its training and usual past behavior and characteristics, may act or react unpredictably at times based upon instinct or fright which likewise is an inherent risk to be assumed by each participant in the activity. (INITIAL [handwritten] KRH).

AS LAWFUL CONSIDERATION for being permitted by Outfitter to participate in the referenced activities, I do hereby RELEASE FROM ANY LEGAL LIABILITY, AGREE NOT TO SUE, CLAIM AGAINST, ATTACH THE PROPERTY OF, OR PROSECUTE, AND FURTHER AGREE TO DEFEND INDEMNITY (sic) AND HOLD HARMLESS THE Outfitter ... and all of [its] officers, members, organizations, agents, and employees for any injury or death caused by or resulting from my participation in the activities described above, WHETHER OR NOT SUCH INJURY OR DEATH WAS CAUSED BY THEIR NEGLIGENCE OR FROM ANY OTHER CAUSE. (INITIAL [handwritten] KRH).

Mr. Hall signed the Release and gave Hidden Creek Outfitters a check for the balance due on his hunt, less the $500.00 deposit. The next morning, he began his hunt, guided by Gary "Stretch" Bauer. On the last day of the hunt, November 10, 2005, Mr. Hall was thrown from a horse, resulting in multiple broken ribs and a hemothorax.²

[¶ 6] Mr. Hall filed suit claiming that Hidden Creek Outfitters, acting through its guide, Mr. Bauer, was negligent in overseeing the hunters with the horses and that Mr. Bauer's actions amounted to willful and wanton misconduct. Mr. Perry and Hidden Creek Outfitters filed a motion for summary judgment, asserting that Mr. Hall's negligence claim was precluded by the Release and there were no facts to support the allegation that Mr. Bauer's actions amounted to willful and wanton misconduct. Mr. Hall responded by arguing that the Release was not supported by consideration and violated public policy. He also claimed that there were genuine issues of material fact as to whether Mr. Bauer's actions amounted to willful and wanton misconduct.

[¶ 7] The district court granted summary judgment in favor of Hidden Creek Outfitters and Mr. Perry, ruling that the Release was part of the original contract, thereby requiring no additional consideration, and did not violate public policy. It also decided, as a matter of law, that Mr. Bauer's actions did not amount to willful and wanton misconduct. Mr. Hall appealed.³

SUMMARY JUDGMENT LAW

[¶ 8] We review the district court's summary judgment order de novo, utilizing the same standards and reviewing the same materials as the district court. Schlesinger v. Woodcock, 2001 WY 120, ¶ 12, 35 P.3d 1232, 1236-37 (Wyo.2001). Summary judgment is proper only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. W.R.C.P. 56(c); Hovendick v. Ruby, 10 P.3d 1119, 1122 (Wyo.2000); Mountain Cement Company v. Johnson, 884 P.2d 30, 32 (Wyo.1994). We examine the record from the vantage point most favorable to the party opposing the...