Del Raso v. U.S.

• Decision Date: 20 March 2001
• Docket Number: PLAINTIFF-APPELLANT,No. 00-1921,DEFENDANT-APPELLEE,00-1921
• Citation: 244 F.3d 567
• Parties: (7th Cir. 2001) ROBERT DEL RASO,, v. UNITED STATES OF AMERICA,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 567

244 F.3d 567 (7th Cir. 2001)

ROBERT DEL RASO, PLAINTIFF-APPELLANT, v. UNITED STATES OF AMERICA, DEFENDANT-APPELLEE.

No. 00-1921

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Argued November 15, 2000

Decided March 20, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 C 4542--William J. Hibbler, Judge.

Blake W. Horwitz (argued), Chicago, IL, for plaintiff-appellant.

Kurt Landland (argued), Criminal Division, Thomas P. Walsh, Civil Division, Office of the U.S. Attorney, Chicago, IL, for defendant-appellee.

Before Posner, Easterbrook, and Kanne, Circuit Judges.

Kanne, Circuit Judge.

While visiting a friend stationed at the United States Army Post at Fort Bragg, North Carolina, civilian Robert Del Raso fell off a horse and allegedly injured his back. Believing that his fall was caused by the failure of a stable employee to tighten his saddle, Del Raso sued the United States under the Federal Tort Claims Act, 28 U.S.C. sec. 1346(b). The district court granted summary judgment in favor of the government because it found that Del Raso released the United States of liability for the negligence of the stable's employee. We affirm.

The Fort Bragg Riding Stables is a federal facility administered by Fort Bragg that provides recreational equestrian services for military personnel and their families and friends. On September 4, 1994 Del Raso and two friends decided to go riding at the stables while visiting a friend at the post. As Del Raso entered the stables, an employee behind the front counter instructed him to wait in line and "sign the waiting list." The "waiting list" was an 8" by 14 inch document entitled "RELEASE AND HOLD HARMLESS AGREEMENT--FORT BRAGG RIDING STABLES COMMUNITY RECREATION DIVISION FACILITY, FORT BRAGG, NC 28307-5000" with seven paragraphs of text underneath the title and a grid with columns for printed names, signatures, phone numbers, amounts paid, and other information. The first three paragraphs announced that the document was a release of liability, that a participant's signature was required to ride a horse, and that the information provided would not be shared with third parties. The remaining paragraphs stated the terms of the release, specifying that it was meant to hold the United States harmless from

any and all causes of action, including personal injury... arising from the use, enjoyment, and control over the said horse, saddle, and bridle, including any and all causes of action... arising out of the saddle or bridle becoming loose or breaking or the saddle falling from the horse or the rider being thrown from the horse by reason of the saddle becoming or being loose or the bridle breaking or the nature of the actions of the horse or the rider or any other person or animals whatsoever.

This release is intended to cover all injuries... of every name, type, kind or nature... which might be sustained or suffered from any cause whatsoever connected with or arising out of or by reason of the use of said horse, bridle, or saddle.

Del Raso and two friends, one in front and the other behind, entered the line behind 20 or so other patrons waiting to sign this document. When Del Raso reached the counter, he felt pressured to move out of the way of the persons waiting behind him, so he glanced at the document for what he described as "two seconds" and quickly printed and signed his name on the sixth line. He and his friends then waited for about one hour for the horses to arrive and their ride to begin. During that time the document remained on the counter, but Del Raso made no attempts to read it nor did he ask questions about it. When the horses arrived, an employee referred to the document to call out the names of the next group of riders.

After his name was called, Del Raso, who has a prosthetic leg, requested assistance in mounting his horse and placing his feet in the stirrups. While employee Mark Rossignol assisted him, Del Raso stated that the saddle felt loose and asked Rossignol to tighten it. Rossignol, believing that Del Raso was simply nervous and inexperienced with horseback riding, neither checked nor secured the saddle. During the ride, however, the saddle slipped and Del Raso fell to the ground with his prosthetic leg caught in the stirrup. The horse dragged him for a short distance, and Del Raso fractured several vertebrae. He claims that he now cannot work.

Del Raso believed that his injury resulted from Rossignol's failure to properly secure the saddle and submitted a $300,000 claim to the Department of the Army. The Army Claims Service denied relief in writing in January 1998, and Del Raso timely sued the United States under the FTCA in the Northern District of Illinois.¹ Following discovery, the United States moved for summary judgment on the basis that the release barred Del Raso's claim. In his response, Del Raso admitted that he signed the release and that such releases are generally valid in North Carolina. Del Raso asserted, however, that the release should not be enforced against him because the employee behind the counter fraudulently induced him to sign by referring to the release as a "waiting list" and that both he and the employee were mutually mistaken as to its contents and effect. The district court construed the release to completely bar Del Raso's claim and granted summary judgment in the government's favor.

We review de novo the district court's order granting summary judgment, drawing all reasonable inferences from the record in the light most favorable to the non-moving party. Stratmeyer v. United States, 67 F.3d 1340, 1345 (7th Cir. 1995). Summary judgment is appropriate when, after an adequate time for discovery, the non-moving party fails to establish the existence of a genuine issue of material fact for trial, Fed. R. Civ. P. 56(c), or make a showing sufficient to prove an element essential to his case on which he will bear the burden of proof at trial, Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Because the alleged tort occurred in North Carolina, the substantive law of that state applies, 28 U.S.C. sec. 1346(b); FDIC v. Meyer, 510 U.S. 471, 478 (1994); Stratmeyer, 67 F.3d at 1345, and we review de novo the district court's determination of the content of state law, Keller v. United States, 58 F.3d 1194, 1197 (7th Cir. 1995).

A release-and-hold-harmless agreement based on valuable consideration is a complete defense to personal injury action for damages in North Carolina. Caudill v. Chatham Manufacturing Co., 128 S.E.2d 128, 130 (N.C. 1962); Cunningham v. Brown, 276 S.E.2d 718, 723 (N.C. Ct. App. 1981). North Carolina courts, like those of many other states, do not favor contracts releasing parties from liability for their future negligence, but will nevertheless enforce such clauses unless they violate a statute, are gained through an inequality of bargaining power, or contravene public policy. Hall v. Sinclair Refining Co., 89 S.E.2d 396, 397 (N.C. 1955); Fortson v. McClellan, 508 S.E.2d 549, 551 (N.C. Ct. App. 1998); Johnson v. Dunlap, 280 S.E.2d 759, 763 (N.C. Ct. App. 1981); Andrews v. Fitzgerald, 823 F. Supp. 356, 378 (M.D.N.C. 1993).

North...