Kyriazis v. University of West Virginia

• Citation: 450 S.E.2d 649,192 W.Va. 60
• Decision Date: 28 October 1994
• Docket Number: No. 22086,22086
• Court: Supreme Court of West Virginia
• Parties: , 63 USLW 2361, 95 Ed. Law Rep. 1102 Jeffrey KYRIAZIS, Plaintiff Below, Appellant v. UNIVERSITY OF WEST VIRGINIA; University of West Virginia Board of Trustees, A/K/A University System of West Virginia Board of Trustees; the Rugby Club of University of West Virginia; William Fitzpatrick, Defendants Below, Appellees.

Page 649

450 S.E.2d 649

192 W.Va. 60, 63 USLW 2361, 95 Ed.

Law Rep. 1102

Jeffrey KYRIAZIS, Plaintiff Below, Appellant v. UNIVERSITY OF WEST VIRGINIA; University of West Virginia Board of Trustees, A/K/A University System of West Virginia Board of Trustees; the Rugby Club of University of West Virginia; William Fitzpatrick, Defendants Below, Appellees.

No. 22086.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 4, 1994.

Decided Oct. 28, 1994.

Syllabus by the Court

1. Generally, in the absence of an applicable safety statute, a plaintiff who expressly and, under the circumstances, clearly agrees to accept a risk of harm arising from the defendant's negligent or reckless conduct may not recover for such harm, unless the agreement is invalid as contrary to public policy. When an express agreement is freely and fairly made, between parties who are in an equal bargaining position, and there is no public interest with which the agreement interferes, it generally will be upheld.

2. A clause in an agreement exempting a party from tort liability is unenforceable on grounds of public policy if, for example, (1) the clause exempts a party charged with a duty of public service from tort liability to a party to whom that duty is owed, or (2) the injured party is similarly a member of a class that is protected against the class to which the party inflicting the harm belongs.

3. In the context of tort liability, when considering whether an enterprise qualifies as a public service, the Court must examine the nature of the enterprise itself.

4. When a state university provides recreational activities to its students, it fulfills its educational mission, and performs a public service. As an enterprise charged with a duty of public service, a state university owes a duty of care to its students when it encourages them to participate in its athletic endeavors.

Thomas A. Berret, Meyer, Unkovic & Scott, Pittsburgh, PA and Carl H. Cather, III, Spilman, Thomas & Battle, Morgantown, for appellant.

Timothy J. Padden and Bruce A. Kayuha, Rose, Padden & Petty, Morgantown, for appellees.

NEELY, Justice:

The appellant, Jeffrey Kyriazis, filed a complaint in the Circuit Court of Monongalia County against appellees seeking damages for injuries he suffered while playing rugby in a match held by the West Virginia University Rugby Club. The outcome of this appeal turns on the validity of an anticipatory release signed by the appellant and found to be an absolute bar to his claim by the trial court in its order that granted summary judgment in favor of the Board of Trustees ["Board"] and William Fitzpatrick, the faculty advisor to the Rugby Club. Because we find the anticipatory release in this case violates public policy and equal protection under the West Virginia Constitution, we find the circuit court improperly granted the summary judgment, and for the reasons stated below, we reverse and remand.

FACTS

In February 1990, during the second semester of his sophomore year, the appellant became interested in playing rugby after seeing notices posted for the sport at the university. Mr. Kyriazis' interest resulted in his attending an organizational meeting of the Rugby Club, and, eventually, his decision to join the club.

In his deposition, Mr. Kyriazis testified the club held practice three days per week for six to eight weeks before the first match. Appellee Fitzpatrick, the coach and faculty advisor, provided the instruction and coaching at the practices that were conducted on the property of West Virginia University ["University"]. Scrimmages occurred during some of the practices, as well as on one separate day. The appellant participated in most of the practices and one separately held scrimmage.

During one of the practices, the team captain told the players they were all required to sign a document entitled "West Virginia Sports Club Federation, Rugby Club, Release Waiver, and Participation Agreement" ["Release"]. ¹ Although the parties to this appeal disagree as to whether Mr. Kyriazis understood the terms of the Release, the appellant signed the form ².

Before joining the Rugby Club, the appellant had no previous experience with the sport. On 7 April 1990, while playing in his first match, Mr. Kyriazis left the game in the second half after he became dizzy and lost his balance. Later medical studies revealed appellant had suffered a basilar-artery thrombosis.

In April 1992, Mr. Kyriazis filed his complaint against the appellees seeking damages in excess of $100,000 up to but not in excess of defendant's liability insurance coverage for his injury. As one of their defenses to the complaint, the Trustees and Dr. Fitzpatrick asserted the signed Release barred appellant's claim. Thereafter, the parties engaged in extensive discovery, all related to the validity of the Release.

According to Mr. David Taylor, the Director of Student Activities at the University, the University's Department of Student Activities offers students the opportunity to participate in athletics through intramural programs and club sports. ³ The difference between intramural programs and sports clubs lies mainly in the degree of control the University exercises over each. Although the Board undertakes no role with the creation, organization, regulation or supervision of club sports, including the Rugby Club, it does actively control intramural programs and reviews them for safety. ⁴

If a student wants to participate in a sport not offered in the intramural program, he or she may form or join a sports club and the sports club may obtain recognition from the university. ⁵ This recognition entitles the sports club to money from the university, as well as the use of university facilities. After a sports club becomes an authorized student organization, it may also join the Sports Club Federation ["Federation"] and receive additional money. ⁶ In 1974, the Rugby Club successfully petitioned for University recognition and maintained such status as of the date of appellant's injury. It was also a member of the Sports Club Federation at that time.

Mr. Taylor testified that the University did not require a signed Release as a condition of participation if the student were involved in intramural sports, in a sports club that was not a member of the Federation, or if the student were involved in an activity of any other student organization. Instead, the only students required to sign the Release were those whose sports clubs belonged to the Federation. ⁷ Although the Office of General Counsel approved the Release, the evidence in the record reveals the Release policy was made without any involvement by the Director of Student Activities, the University President, or the Board.

After the discovery of the above facts, the appellant moved for partial summary judgment seeking a determination that: (1) the anticipatory Release he signed was void as against the public policy of the State of West Virginia; (2) the policy requiring him to sign the Release was unconstitutional under the Constitutions of the State of West Virginia and the United States; and (3) the policy was invalid because it was not properly adopted by the appellees. The appellees filed cross-motions for summary judgment and the Board and Dr. Fitzpatrick based their motions on the claims that the anticipatory Release constituted an absolute bar to suit and that the University owed no duty to the appellant. On 14 July 1993, the circuit court granted appellees' motions. The court entered a supplemental order on 3 September 1993 confirming the dismissal.

In this appeal, the appellant asserts the following errors: (1) the circuit court erred in denying his motion for partial summary judgment and in granting the appellees' motions because the anticipatory Release is contrary to the public policy of the State of West Virginia; (2) the circuit court erred in denying Appellant's motion for partial summary judgment because the Release is an unconstitutional deprivation of his right to equal protection guaranteed by the West Virginia and the United States Constitutions, and unconstitutionally deprives him of his right to a certain remedy as guaranteed by the West Virginia Constitution; and (3) the circuit court erred in denying Appellant's motion for partial summary judgment because the Release was promulgated contrary to the procedures required for the adoption of official University policy and the persons who promulgated the policy lacked authority to do so. In determining the validity of the Release, we will consider each of these issues in turn.

The Public Policy Issue

In Murphy v. North American River Runners, Inc., 186 W.Va. 310, at 314-315, 412 S.E.2d 504, 508-09 (1991), we outlined the West Virginia law on anticipatory releases as follows:

Generally, in the absence of an applicable safety statute, a plaintiff who expressly and, under the circumstances, clearly agrees to accept a risk of harm arising from the defendant's negligent or reckless conduct may not recover for such harm, unless the agreement is invalid as contrary to public policy. Restatement (Second) of Torts § 496B (1963, 1964) (express assumption of risk). When such an express agreement is freely and fairly made, between parties who are in an equal bargaining position, and there is no public interest with which the agreement interferes, it generally will be upheld....

...

A clause in an agreement exempting a party from tort liability is, however, unenforceable on grounds of public policy if, for example, (1) the clause exempts a party charged with a duty of public service from tort liability to a party to whom that duty is owed, or (2) the injured party is similarly a member of a class which is protected against the class to which the party inflicting the harm belongs. Restatement (Second) of Contracts § 195(2)(b)-(c) (1979).

(Emphasis in original) (Citations omitted).

River Runners considered whether a commercial...