Julian v. Zayre Corp., No. 76-430-A

CourtUnited States State Supreme Court of Rhode Island
Writing for the CourtBEVILACQUA
Citation120 R.I. 494,388 A.2d 813
PartiesDiago JULIAN et al. v. ZAYRE CORPORATION. ppeal.
Docket NumberNo. 76-430-A
Decision Date19 July 1978

Page 813

388 A.2d 813
120 R.I. 494
Diago JULIAN et al.
v.
ZAYRE CORPORATION.
No. 76-430-Appeal.
Supreme Court of Rhode Island.
July 19, 1978.

Page 814

[120 R.I. 500] Pucci & Goldin, Samuel A. Olevson, Providence, for plaintiffs.

Carroll, Kelly & Murphy, Dennis S. Baluch, Providence, for defendant.

OPINION

[120 R.I. 496] BEVILACQUA, Chief Justice.

The plaintiffs, Diago Julian and his mother, Marion Julian, have appealed in this civil matter from summary judgments entered in favor of the defendants, Zayre Corporation (Zayre) and Leisure Dynamics, Incorporated (Leisure). The plaintiffs had initiated an action for damages against Leisure for design negligence and against Zayre for breach of warranty. The action concerned a plastic tricycle called an "Eldon Cheetah" that was manufactured by Leisure and purchased by the plaintiffs from Zayre.

On October 7, 1974 Diago, 8 years old at the time, was riding on the tricycle in the driveway of his home in Fall River, Massachusetts. As he rode out onto an abutting street, Diago was struck by a motor vehicle owned by Muriel L. Reynolds and operated by Pierre Bouchard. As a result of the collision Diago suffered multiple leg and foot fractures which required extensive surgery.

Subsequently Diago and his mother brought a negligence action against Muriel Reynolds and Pierre Bouchard based upon the personal injuries suffered by Diago and the resulting medical expenses encountered by Marion. A settlement was achieved between plaintiffs and the insurer of Reynolds and Bouchard, The Commercial Union Insurance Company (Commercial Union). The settlement, in the sum of $34,000, $28,000 of which was for Diago's claim and $6,000 of which was for Marion's claim, was submitted to the Superior Court for approval in a friendly suit. The court approved the settlement and entered a judgment accordingly.

As part of the settlement and on behalf of Diago, plaintiff Marion Julian executed and signed a Parent's Release and Indemnity Agreement with Commercial Union that covenanted to hold harmless from any further liability Reynolds, [120 R.I. 497] Bouchard, Commercial Union, and "any other person, firm or corporation charged or chargeable with responsibility or liability * * * from any

Page 815

and all claims * * * actions and causes of action, belonging to the said minor or to the undersigned" as a result of the accident of October 7. There is no evidence that this release was ever approved by a court.

In January 1976 plaintiffs instituted the present action against defendants Zayre and Leisure. Based upon the release defendants claimed that they were discharged from any liability arising out of the accident. On these grounds they moved for and were granted summary judgments. The plaintiffs appealed from those judgments.

The plaintiffs contend that the release signed and executed by Marion Julian on her own behalf and that of her minor child Diago was not valid and binding as to the latter and therefore could not operate as a bar to any cause of action belonging to the child. If this were true, then the summary judgments would have been erroneously granted. In rebuttal defendants argue that the interests of Diago were fully protected by the validly executed release and that Marion Julian could, by signing the release as parent and guardian of Diago, bind the minor to the terms of the release and thereby with reference to the incident in question extinguish any claim Diago might have.

At the trial below, defendants' motions for summary judgment under Super.R.Civ.P. 56 raised the release as a defense to plaintiff's claim....

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13 practice notes
  • McInnis v. Harley-Davidson Motor Co., Inc., Civ. A. No. 82-0422-S.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • January 14, 1986
    ...decide the question because the particular cases which touched upon the issue did not squarely raise it. See id.; Julian v. Zayre Corp., 120 R.I. 494, 388 625 F. Supp. 946 A.2d 813, 815 (1978). Yet, the tea leaves can be read in this instance with surprising clarity. This court believes tha......
  • Meyer v. Naperville Manner, Inc., No. 2-93-0109
    • United States
    • United States Appellate Court of Illinois
    • May 17, 1994
    ...Francisco (1953), 41 Cal.2d 608, 262 P.2d 6; Gordon v. Agaronian (1957), 10 Misc.2d 650, 171 N.Y.S.2d 131; Julian v. Zayre Corp. (1978), 120 R.I. 494, 388 A.2d 813.) This rule has also been extended to render ineffective releases or exculpatory agreements for future tortious conduct by othe......
  • Young v. Warwick Rollermagic Skating Center, No. 2008-111-Appeal.
    • United States
    • United States State Supreme Court of Rhode Island
    • June 30, 2009
    ...concerning the meaning of a particular release. See Lennon v. MacGregor, 423 A.2d 820, 822 (R.I.1980); see also Julian v. Zayre Corp., 120 R.I. 494, 498, 388 A.2d 813, 815 (1978); Ratzlaff v. Seven Bar Flying Service, Inc., 98 N.M. 159, 646 P.2d 586, 589 (Ct.App.1982) ("Releases, being cont......
  • Ratzlaff v. Seven Bar Flying Service, Inc., No. 5314
    • United States
    • New Mexico Court of Appeals of New Mexico
    • April 8, 1982
    ...Indemnity Co. v. Bevans, 38 Or.App. 369, 590 P.2d 276 (1979); Bruns v. Light, 74 S.D. 418, 54 N.W.2d 99 (1952); Julian v. Zayre Corp., 388 A.2d 813 (R.I.1978); Maxwell's Electric, Inc. v. Hegeman-Harris Co. of Canada, Ltd., 18 Wash.App. 358, 567 P.2d 1149 The law is well-settled that the co......
  • Request a trial to view additional results
13 cases
  • McInnis v. Harley-Davidson Motor Co., Inc., Civ. A. No. 82-0422-S.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • January 14, 1986
    ...decide the question because the particular cases which touched upon the issue did not squarely raise it. See id.; Julian v. Zayre Corp., 120 R.I. 494, 388 625 F. Supp. 946 A.2d 813, 815 (1978). Yet, the tea leaves can be read in this instance with surprising clarity. This court believes tha......
  • Meyer v. Naperville Manner, Inc., No. 2-93-0109
    • United States
    • United States Appellate Court of Illinois
    • May 17, 1994
    ...Francisco (1953), 41 Cal.2d 608, 262 P.2d 6; Gordon v. Agaronian (1957), 10 Misc.2d 650, 171 N.Y.S.2d 131; Julian v. Zayre Corp. (1978), 120 R.I. 494, 388 A.2d 813.) This rule has also been extended to render ineffective releases or exculpatory agreements for future tortious conduct by othe......
  • Young v. Warwick Rollermagic Skating Center, No. 2008-111-Appeal.
    • United States
    • United States State Supreme Court of Rhode Island
    • June 30, 2009
    ...concerning the meaning of a particular release. See Lennon v. MacGregor, 423 A.2d 820, 822 (R.I.1980); see also Julian v. Zayre Corp., 120 R.I. 494, 498, 388 A.2d 813, 815 (1978); Ratzlaff v. Seven Bar Flying Service, Inc., 98 N.M. 159, 646 P.2d 586, 589 (Ct.App.1982) ("Releases, being cont......
  • Ratzlaff v. Seven Bar Flying Service, Inc., No. 5314
    • United States
    • New Mexico Court of Appeals of New Mexico
    • April 8, 1982
    ...Indemnity Co. v. Bevans, 38 Or.App. 369, 590 P.2d 276 (1979); Bruns v. Light, 74 S.D. 418, 54 N.W.2d 99 (1952); Julian v. Zayre Corp., 388 A.2d 813 (R.I.1978); Maxwell's Electric, Inc. v. Hegeman-Harris Co. of Canada, Ltd., 18 Wash.App. 358, 567 P.2d 1149 The law is well-settled that the co......
  • Request a trial to view additional results

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