Hornbeck v. All American Indoor Sports, Inc., WD

• Citation: 898 S.W.2d 717
• Decision Date: 30 May 1995
• Docket Number: No. WD,WD
• Parties: William D. HORNBECK, Appellant, v. ALL AMERICAN INDOOR SPORTS, INC., et al., Respondents. 49855.
• Court: Court of Appeal of Missouri (US)

Page 717

898 S.W.2d 717

William D. HORNBECK, Appellant, v. ALL AMERICAN INDOOR SPORTS, INC., et al., Respondents.

No. WD 49855.

Missouri Court of Appeals,

Western District.

May 30, 1995.

Stephen Robert Miller, Kansas City, for appellant.

David Roy Buchanan, John S. Rollins, Kansas City, for respondents.

Before FENNER, C.J., and BRECKENRIDGE, P.J., and HANNA, J.

FENNER, Chief Judge.

Appellant, William Hornbeck, ruptured an achilles tendon while taking part in an indoor soccer game at the premises owned by respondents Ron Matsch and James R. Jorgenson, the Bannister Company, L.P. ("Bannister"), and operated by All American Indoor Sports, Inc. ("All American"). Mr. Hornbeck alleges that there was a rip or tear in the artificial surface of the playing field at the All American facility that caused his injury.

In his petition, Mr. Hornbeck alleged that respondents breached the duty of reasonable care to maintain the indoor soccer arena in a reasonably safe condition by failing to repair the defective surface, by permitting him to play on the defective surface, by failing to warn him of the danger, and by failing to restrict access to the dangerous area. Mr. Hornbeck sought recovery of medical expenses, lost wages, and damages for losses to his sole proprietorship, impairment of his earning capacity, and future medical expenses and lost income. Appellant Mary Quinn Hornbeck claimed damages for lost wages while caring for William Hornbeck after his injury.

After deposing Mr. Hornbeck, respondents filed motions for summary judgment. Respondent All American's motion for summary judgment was based on Mr. Hornbeck's signing of a team roster containing a "Player Release Clause" ("Release") that reads as follows:

In consideration of participation in and at All American Indoor Sports, Inc. (A.A.I.S.), its playing fields, leagues, clinics, camps, tournaments, locations or the renting of any of its facilities, the undersigned person(s) hereby release A.A.I.S., its officers, employees, volunteers, officials and agents from any and all claims, liability, loss of services and causes of action of any kind for personal injury and property damage arising in any way out of said participation. Further, the undersigned person(s) agree to abide by and comply with all A.A.I.S. rules and regulations. By signing my name below, I hereby acknowledge that I have read the above, I understand it and I agree to all of its terms.

(Emphasis added). Mr. Hornbeck admitted to voluntarily signing the roster form containing the Release and to participating in various indoor soccer leagues for approximately 10 years prior to his injury. All American asserted that the Release, combined with the facts and circumstances presented by the case, was sufficient to release it from all claims asserted by appellants in this cause of action and, therefore, summary judgment was proper.

Respondent Bannister asserted as its basis for summary judgment that it had no duty to keep the premises safe under the lease agreement with All American. The lease was for a term of 15 years and the document itself did not impose any duty on Bannister to make repairs to maintain the premises in a reasonably safe condition, though certain other rights were retained in the lease.

The trial court granted the summary judgment motions of both respondents by Order on May 11, 1994, without announcing specific findings. A motion to reconsider was denied, and appellants appeal from the grant of the motions for summary judgment.

I. STANDARD OF REVIEW

The Missouri Supreme Court provided an exhaustive analysis of summary judgment practice and review in its opinion in ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371 (Mo. banc 1993). Appellate review of summary judgments is essentially de novo. Id. at 376. The criteria on appeal for testing the propriety of summary judgment are no different than those which the trial court should have employed initially. Id. As the trial court's initial judgment is founded on the record submitted and the law, there is no need for the appellate court to defer to the trial court's granting of the summary judgment motion. Id.

When considering the appeal, the Court will review the record in the light most favorable to the party against whom judgment is sought. State ex rel. Conway v. Villa, 847 S.W.2d 881, 886 (Mo.App.1993). The movant bears the burden of establishing a right to judgment as a matter of law on the record as submitted; any evidence in the record that presents a genuine issue as to the material facts defeats the movant's prima facie showing. ITT Commercial Fin. Corp., 854 S.W.2d at 382. A "genuine issue" exists where the record contains competent material that evidences two plausible, but contradictory, accounts of the essential facts. Id. A "genuine issue" is a dispute that is real, not merely argumentative, imaginary, or frivolous. Id.

The non-movant is accorded the benefit of all reasonable inferences from the record. Martin v. City of Washington, 848 S.W.2d 487, 489 (Mo. banc 1993). If the movant requires an inference to establish his right to judgment as a matter of law and the evidence reasonably supports an inference other than that alleged by movant, a genuine dispute exists and the movant's prima facie showing fails. ITT Commercial Fin. Corp., 854 S.W.2d at 382.

Facts set forth in support of a party's motion for summary judgment are taken as true unless contradicted by the non-moving party's response to the summary judgment motion. Id. at 376. Even if uncontradicted, however, the facts alleged by movant must still establish an entitlement to judgment as a matter of law for summary judgment to be proper. See E.O. Dorsch Elec. Co. v. Plaza Const. Co., 413 S.W.2d 167, 173 (Mo.1967). The key to summary judgment is the undisputed right to judgment as a matter of law, not simply the absence of a fact question. ITT Commercial Fin. Corp., 854 S.W.2d at 380.

II. SHOWING REQUIRED BY ALL AMERICAN AND BANNISTER TO SUPPORT THEIR RESPECTIVE SUMMARY JUDGMENT MOTIONS

All American and Bannister were both "defending parties" in the underlying action. A movant who is a "defending party" may establish a right to summary judgment by showing any one of the following: (1) facts that negate any one of the claimant's facts required to establish an element of claimant's claim; (2) the non-movant, after a reasonable period for discovery, has not and will not be able to produce evidence for the trier of fact to find the existence of any one of the claimant's elements; or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pled affirmative defense. ITT Commercial Fin. Corp., 854 S.W.2d at 381.

Only once the movant has satisfied one of the three grounds for establishing a right to judgment is the non-movant required to set forth specific facts showing there is a genuine issue of material fact. Id. (citing Rule 74.04). Once the movant makes a prima facie showing, an adverse party may not rest upon the mere allegations or denials contained in their pleadings to contradict facts alleged by the movant. Id.

III. ALL AMERICAN'S MOTION FOR SUMMARY JUDGMENT

To establish entitlement to summary judgment, All American must make a prima facie showing that it is entitled to judgment as a matter of law that is not overcome by facts alleged by the appellants that establish a genuine issue for trial.

All American relies on the properly-pled affirmative defense of release to show it is entitled to judgment as a matter of law. The release, however, must be a valid and enforceable waiver in order for summary judgment to be proper.

There is no dispute regarding whether Mr. Hornbeck executed the Release. Further, exculpatory clauses like that contained in the Release which exonerate a party from acts of future negligence are not against public policy in Missouri and are thus binding and valid on the parties. Haines v. St. Charles Speedway, Inc., 689 F.Supp. 964, 967 (E.D.Mo.1988), aff'd, 874 F.2d 572 (8th Cir.1989) (construing Missouri law); Weindel v. De Soto Rural Fire Protection Assoc., Inc., 765 S.W.2d 712, 715 (Mo.App.1989). Also, it has been held in a number of cases that an agreement between a patron and the operator of an amusement device exempting the latter from liability for ordinary negligence resulting in personal injury is valid and enforceable against the patron if the patron is properly notified thereof. See Annotation, Validity, Construction, and Effect of Agreement Exempting Operator of Amusement Facility from Liability for Personal Injury or Death of Patron, 8 A.L.R.3d 1393 (1966). The question in this matter is whether the release properly notified appellant William Hornbeck that he was releasing All American from claims arising from All American's own negligence.

While contracts exonerating a party from acts of future negligence are not against public policy, they are strictly construed against the party claiming the benefit of the contract, and clear and explicit language in the contract is required to absolve a person from such liability. See Thomas v. Skelly Oil Co., 344 S.W.2d 320, 322 (Mo.App.1960); 17 C.J.S. Contracts § 262 (1963).

All American cites Haines v. St. Charles Speedway, Inc., as supporting it's argument that the Release was clear and specific enough to exonerate it from liability. The release in Haines, however, contained language releasing claims "whether caused by the negligence of the releasees or otherwise...." 689 F.Supp. at 969. This language clearly and unambiguously encompassed the negligence of the party seeking to enforce the release. Such language is not present in the case at bar. The language of the Release signed by Hornbeck purporting to exonerate All American from "any and all claims ... arising from said participation" does not clearly and unambiguously exonerate All American from its own negligence. The language...