McDermott v. Carie, LLC

Decision Date22 November 2005
Docket NumberNo. 04-828.,04-828.
Citation124 P.3d 168,2005 MT 293
CourtMontana Supreme Court
PartiesKieran McDERMOTT, Plaintiff and Appellant, v. CARIE, LLC d/b/a Horse Prairie Ranch, Defendant and Respondent.

Geoffrey C. Angel, Angel Law Firm, Bozeman, Montana, for Appellant.

Jared S. Dahle, Nelson and Dahle, Billings, Montana, for Respondent.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Kieran McDermott (McDermott) suffered an injury while he was a paying guest at the Horse Prairie Ranch (HPR) and he sued alleging negligence and actual malice. A jury found in favor of HPR and awarded it the costs incurred in the action with interest. McDermott appeals from that judgment.

¶ 2 McDermott raises three issues on appeal:

(1) Whether the District Court abused its discretion when it admitted a redacted version of a prospective release from liability as evidence that McDermott was aware of the inherent risks involved in his participation in equine activities;

(2) Whether the District Court manifestly abused its discretion when it denied McDermott's motion for a new trial or judgment notwithstanding the verdict;

(3) Whether the District Court abused its discretion when it awarded costs to HPR.

We affirm in part, reverse in part and remand.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 McDermott and members of his family were paying guests at HPR, a dude ranch in Beaverhead County. Prior to participating in any activities at HPR, McDermott was required to sign a Waiver and Release Agreement (Agreement) purporting to prospectively excuse HPR from liability for any injuries he may suffer while participating in activities at the Ranch. On July 23, 2001, under the supervision of four wranglers, McDermott and ten other guests were saddling their horses in preparation for a horseback ride. McDermott's stepmother was among the guests preparing for the ride. Her horse was tethered by a lead rope to a hitching post. While McDermott attempted to untie this rope, the horse pulled back. The rope, still wrapped around McDermott's finger, tightened, severing the distal portion of his right index finger.

¶ 4 McDermott sued HPR, alleging, among other things, that HPR was negligent in determining McDermott's ability to safely engage in the equine activity, in selecting a horse that McDermott could safely manage, in inspecting and maintaining the tack, and generally by failing to prevent injury to McDermott during his participation in equine activities. HPR advanced the affirmative defense that the statutory equine activity liability limitations, §§ 27-1-727(1) and 27-1-725, MCA (2003), shielded them from liability.

¶ 5 Although HPR conceded that the Agreement is not enforceable, they nonetheless filed a motion in limine seeking to have the Agreement admitted as an exhibit for the limited purpose of showing that McDermott was aware that equine activities are inherently dangerous. In its motion, HPR indicated that it was mindful that the language releasing HPR from liability may have a prejudicial effect on the jury and it expressed its willingness to redact the Agreement such that the potentially prejudicial language would not be included in the exhibit. McDermott responded with a motion in limine seeking to exclude the Agreement from being used for any evidentiary purpose. McDermott correctly observed that the Agreement was an illegal and unenforceable attempt to prospectively release HPR from tort liability and postulated, therefore, that it cannot be used for any purpose; otherwise, HPR would benefit from the illegal contract. After a hearing, which McDermott and his attorney inexplicably failed to attend, the court permitted HPR to introduce a redacted version of the Agreement — excluding any language that prospectively releases HPR from liability.

¶ 6 At trial, HPR introduced an exhibit (Exhibit 62) that contained a redacted version of the Agreement. Exhibit 62 omitted all language in the Agreement that purported to release HPR from liability and only included those portions of the Agreement that the court deemed pertinent to McDermott's knowledge and comprehension of the risks involved in equine activities. As excised, Exhibit 62 read:

1. I acknowledge that inherent risks, hazards and dangers exist on and around (e.g. U.S. Forest, BLM federal lands, State lands, leased private lands, fishing rivers and lakes, and transportation associated with HPR activities and adventures) the HPR that cannot be eliminated, particularly in the working cattle ranch and wilderness environments for the types of activities and adventures in which I may participate, including but not limited to horseback riding.... Such risks, hazards and dangers include, among others, the unpredictable nature of horses....

...

I agree to comply with all HPR rules and regulations, including those given verbally and in writing, and to participate in safety meetings and the presentation of any safety material, such as a video on horse safety, which are designed and offered to promote safety in HPR activities and adventures.

...

3. Knowing the inherent risks, dangers and rigors involved in the activities and adventures in which I choose to participate at the HPR, I certify that I am fully capable of participating in the activities and adventures offered...

¶ 7 During voir dire, a prospective juror had responded to questions from McDermott's counsel and the judge by indicating that he expected that McDermott had signed a waiver before participating in activities at HPR and that it would not be right to allow him to later invalidate that waiver. Counsel for HPR then engaged the prospective juror in a colloquy that culminated with a suggestion that a person who engages in horseback riding assumes the risks involved in such activities. The record indicates that McDermott's counsel did not contemporaneously object to any of the questions asked of the prospective juror nor to any of the responses he provided. During closing argument, counsel for HPR made two comments to the effect that McDermott's signature on Exhibit 62 indicates that he acknowledged the risks inherent in horseback riding. McDermott's counsel did not object to these comments when they were issued. Not until a judgment had been entered against him did McDermott allege that it was error to allow any of these comments to be made in front of the jurors.

¶ 8 The jury found in favor of HPR. The jury indicated that HPR was not negligent. Judgment was entered requiring McDermott to pay the costs incurred by HPR in its defense, with interest. McDermott then moved for a new trial or judgment notwithstanding the verdict based on the admission of Exhibit 62 and the references that HPR made to the exhibit during closing argument, which purportedly violated the court's order admitting the exhibit in redacted form for a limited purpose. The District Court denied this motion.

¶ 9 HPR served McDermott with a Bill of Costs — a memorandum that listed the costs it had incurred in defending the action, accompanied by an affidavit verifying the accuracy of the enumerated costs. The affidavit states, in pertinent part, "Jared S. Dahle, being duly sworn, deposes and says: .... That to the best of his knowledge and belief, the items in the above Bill of Costs are correct, and that said costs have been necessarily incurred in said action." The affidavit, however, is signed by Mr. Dahle's partner, Randall Nelson, "for Jared S. Dahle." McDermott objected that the Bill of Costs fails to comply with the statutory requirements governing bills of costs and affidavits. The trial court, finding the Bill of Costs procedurally adequate, overruled McDermott's objection. McDermott now appeals.

STANDARD OF REVIEW

¶ 10 We review a district court's evidentiary rulings for an abuse of discretion. Busta v. Columbus Hosp. Corp. (1996), 276 Mont. 342, 353, 916 P.2d 122, 128. Absent a showing of such abuse we will not overturn a district court's ruling on the admissibility of evidence. Christofferson v. City of Great Falls, 2003 MT 189, ¶ 8, 316 Mont. 469, ¶ 8, 74 P.3d 1021, ¶ 8 (citation omitted). A court abuses its discretion if it acts "arbitrarily without employment of conscientious judgment or exceed[s] the bounds of reason resulting in substantial injustice." VonLutzow v. Leppek, 2003 MT 214, ¶ 14, 317 Mont. 109, ¶ 14, 75 P.3d 782, ¶ 14 (citation omitted).

¶ 11 We review a district court's denial of a motion for a new trial for a manifest abuse of discretion. Satterfield v. Medlin, 2002 MT 260, ¶ 14, 312 Mont. 234, ¶ 14, 59 P.3d 33, ¶ 14. A manifest abuse of discretion is one that is obvious, evident or unmistakable. Shammel v. Canyon Resources Corp., 2003 MT 372, ¶ 12, 319 Mont. 132, ¶ 12, 82 P.3d 912, ¶ 12 (citation omitted).

¶ 12 We review a district court's award of costs to determine whether the district court abused its discretion. Mularoni v. Bing, 2001 MT 215, ¶ 22, 306 Mont. 405, ¶ 22, 34 P.3d 497, ¶ 22.

DISCUSSION

Issue 1: Whether the District Court abused its discretion when it admitted a redacted version of a prospective release from liability as evidence that plaintiff was aware of the inherent risks involved in his participation in equine activities.

¶ 13 McDermott essentially reiterates the arguments that he has previously and repeatedly made respecting the admissibility of Exhibit 62.1 He contends that the Agreement is an illegal contract and is void. Accordingly, he contends that it cannot be admitted for any purpose. McDermott protests that during closing argument, HPR impermissibly suggested that McDermott's signature on Exhibit 62 indicated that he had assumed the risk of participating in equine activities. Finally, McDermott argues that during voir dire, HPR violated the court's order limiting the contents and use of Exhibit 62 by insinuating that McDermott had signed a waiver and release of liability.

¶ 14 McDermott, however,...

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