Murphy v. North American River Runners, Inc.

• Decision Date: 12 December 1991
• Docket Number: No. 20072,20072
• Citation: 186 W.Va. 310,412 S.E.2d 504
• Court: West Virginia Supreme Court
• Parties: Kathleen MURPHY, Plaintiff Below, Appellant, v. NORTH AMERICAN RIVER RUNNERS, INC., Defendant Below, Appellee.

Page 504

412 S.E.2d 504

186 W.Va. 310

Kathleen MURPHY, Plaintiff Below, Appellant, v. NORTH AMERICAN RIVER RUNNERS, INC., Defendant Below, Appellee.

No. 20072.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 18, 1991.

Decided Dec. 12, 1991.

Syllabus by the Court

1. When a statute imposes a standard of conduct, a clause in an agreement purporting to exempt a party from tort liability to a member of the protected class for the failure to conform to that statutory standard is unenforceable.

2. A general clause in a pre-injury exculpatory agreement or anticipatory release purporting to exempt a defendant from all liability for any future loss or damage will not be construed to include the loss or damage resulting from the defendant's intentional or reckless misconduct or gross negligence, unless the circumstances clearly indicate that such was the plaintiff's intention.

3. "A release is construed from the standpoint of the parties at the time of its execution. Extrinsic evidence is admissible to show both the relation of the parties and the circumstances which surrounded the transaction." Syl. pt. 1, Cassella v. Weirton Construction Co., 161 W.Va. 317, 241 S.E.2d 924 (1978).

4. "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. pt. 3, Aetna Casualty & Surety Co. v. Federal Insurance Co., 148 W.Va. 160, 133 S.E.2d 770 (1963).

D. Clinton Gallaher, IV, Fayetteville, for appellant.

Charles E. Hurt, Victor A. Barone, Charleston, for appellee.

Michael B. Victorson, William C. Porth, Jr., Robinson & McElwee, Charleston, for West Virginia Professional River Outfitters, Inc. amicus curiae.

McHUGH, Justice:

The issue in this appeal is whether the trial court, the Circuit Court of Fayette County, West Virginia, properly granted a summary judgment to the defendant on the ground that the anticipatory release executed by the plaintiff was a complete bar to any action by the plaintiff against the defendant for injuries sustained by the plaintiff during a whitewater rafting expedition conducted by the defendant. We believe that the circuit court improperly granted the summary judgment, for the reasons stated below, and, consequently, we reverse and remand.

I

In August, 1987, the plaintiff-appellant, Kathleen L. Murphy, went whitewater rafting as a paying passenger in a raft owned and operated by the defendant-appellee, North American River Runners, Inc., a licensed commercial whitewater outfitter. ¹ During this whitewater rafting trip on the New River in Fayette County, West Virginia, the defendant's commercial whitewater guide ² operating the raft in which the plaintiff was riding engaged in a rescue operation of another raft owned and operated by the defendant which had become stuck among some rocks in the river rapids. In attempting to dislodge the other raft by bumping it intentionally with the raft in which the plaintiff was riding, the plaintiff was forcefully thrown in her raft, causing, inter alia, serious injuries to one of her knees and one of her ankles.

Immediately prior to embarking upon the whitewater rafting trip, the plaintiff had signed a form document entitled "Raft Trip Release, Assumption of Risk & Permission[,]" the pertinent terms of which are set forth in the margin. ³

After being injured the plaintiff timely brought a personal injury action against the defendant in the trial court, the Circuit Court of Fayette County, alleging that the defendant's guide "negligently, carelessly and recklessly " caused her injuries. (emphasis added) The defendant moved for summary judgment based upon the anticipatory release. The plaintiff moved for partial summary judgment, claiming that such release was void as contrary to public policy, in that commercial whitewater outfitters' activities are regulated by law and, therefore, may not be the subject of such a release.

The plaintiff opposed the defendant's motion for summary judgment by filing an affidavit of an experienced whitewater rafting guide whose opinion was that there were reasonable alternatives to the type of rescue operation undertaken here which would have posed no risk of harm to the occupants of the plaintiff's raft. The plaintiff also filed her own affidavit in which she stated that she was not informed in advance of the possibility of rescue operations of other rafts by the intentional "bumping" of them by the raft in which she was riding. In her own affidavit the plaintiff also stated that she never contemplated that the release applied to such intentional acts but only to ordinary negligence in the form of piloting mistakes associated with a "normal trip down the river[.]"

The trial court, relying upon the release, granted the defendant's motion for summary judgment and denied the plaintiff's motion for partial summary judgment.

II

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). ⁴ 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. Restatement (Second) of Torts § 496B comment b (1963, 1964). See also Prosser and Keeton on the Law of Torts § 68, at 480-81, 482 (W. Keeton 5th ed. 1984); 3 S. Speiser, C. Krause & A. Gans, The American Law of Torts § 12:48, at 640-41 (1986); 6A A. Corbin, Corbin on Contracts § 1472, at 596-97 (1962 and Supp.1991); 15 S. Williston, A Treatise on the Law of Contracts § 1750A, at 144-45 (3d ed. 1972 & Supp.1991); 57A Am.Jur.2d Negligence §§ 49, 53 (1989). ⁵

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).

An example of the second situation just mentioned is that when a statute imposes a standard of conduct, a clause in an agreement purporting to exempt a party from tort liability to a member of the protected class for the failure to conform to that statutory standard is unenforceable. Restatement (Second) of Contracts § 195 comment a, at 66 (1979). See also Restatement (Second) of Contracts § 179(a) (1979) (a public policy against enforcement of promises or other terms may be derived by the court from legislation relevant to such a policy); Mulder v. Casho, 61 Cal.2d 633, 394 P.2d 545, 547, 39 Cal.Rptr. 705, 707 (1964) (en banc); Fedor v. Mauwehu Council, Boy Scouts of America, Inc., 21 Conn.Supp. 38, 143 A.2d 466, 467 (1958); Prosser and Keeton on the Law of Torts § 68, at 493 (W. Keeton 5th ed. 1984); 57A Am.Jur.2d Negligence §§ 56, 57 (1989). Thus, a plaintiff's express agreement to assume the risk of a defendant's violation of a safety statute enacted for the purpose of protecting the public will not be enforced; the safety obligation created by the statute for such purpose is an obligation owed to the public at large and is not within the power of any private individual to waive. See, e.g., Mulder v. Casho, 394 P.2d at 547, 39 Cal.Rptr. at 707. ⁶

In order for an express agreement assuming the risk to be effective, it must appear that the plaintiff has given his or her assent to the terms of the agreement. Particularly where the agreement is prepared by the defendant, it must appear that the terms were in fact brought home to, and understood by, the plaintiff, before it may be found that the plaintiff has agreed to them. Restatement (Second) of Torts § 496B comment c (1963, 1964). Stated another way, "to relieve a party from liability for his [or her] own negligence by contract, language to that effect must be clear and definite." Bowlby-Harman Lumber Co. v. Commodore Services, Inc., 144 W.Va. 239, 248, 107 S.E.2d 602, 607 (1959).

Moreover, in order for the express agreement to assume the risk to be effective, it must also appear that its terms were intended by both parties to apply to the particular conduct of the defendant which has caused the harm. To determine whether there was such intent, when the agreement is prepared by the defendant, its terms will be construed strictly against the defendant. See, e.g., Rosen v. LTV Recreational Development, Inc., 569 F.2d 1117, 1122-23 (10th Cir.1978).

In particular, a general clause in a pre-injury exculpatory agreement or anticipatory release purporting to exempt a defendant from all liability for any future loss or damage will not be construed to include the loss or damage resulting from the defendant's intentional or reckless misconduct or gross negligence, unless the circumstances clearly indicate that such was the plaintiff's intention. Similarly, a general clause in an exculpatory agreement or anticipatory release exempting the defendant from all liability for any future negligence will not be construed to include intentional or reckless misconduct or gross negligence, unless such intention clearly appears from the circumstances. Restatement (Second) of Torts § 496B comment d (1963, 1964). See also Prosser and Keeton on the Law of Torts § 68, at 483-84 (W. Keeton 5th ed. 1984); 3 S. Speiser, C. Krause & A. Gans, The American Law of Torts § 12:48, at 642 (1986); 57A Am.Jur.2d Negligence § 65 (1989).

These specific rules of anticipatory release construction are related to...