Sharon v. City of Newton
| Decision Date | 10 June 2002 |
| Docket Number | SJC-08671 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | MERAV SHARON vs. CITY OF NEWTON. Docket No.:MASSACHUSETTS SUPREME COURT County: Middlesex |
Summary: Practice, Civil, Answer, Amendment, Motion to amend. Parent and Child, Education. Release. School and School Committee, Liability for tort. Public Policy. Contract, Minor, Release from liability, Consideration. Negligence, Contractual limitation of liability, School. Massachusetts Tort Claims Act. Governmental Immunity.
Civil action commenced in the Superior Court Department on November 5, 1998.
A motion to amend answer was heard by Martha B. Sosman, J., and the case was heard by Leila R. Kern, J., on a motion for summary judgment.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Jeffrey Petrucelly for the plaintiff.
Richard G. Chmielinski, Assistant City Solicitor, for the defendant.
The following submitted briefs for amici curiae:
Thomas J. Urbelis for Massachusetts City Solicitors and Town Counsel Association.
Michael K. Gillis & John J. St. Andre for The Massachusetts Academy of Trial Attorneys.
Leonard H. Kesten & Patricia M. Malone for Massachusetts Municipal Association.
Present(Sitting at Barnstable): Marshall, C.J., Greaney, Ireland, Spina, & Cordy, JJ.
In this case, we consider the question of the validity of a release signed by the parent of a minor child for the purpose of permitting her to engage in public school extra-curricular sports activities. The question is one of first impression in the Commonwealth.
On November 8, 1995, sixteen year old Merav Sharon was injured while participating in a cheerleading practice at Newton North High School. Merav fell from a teammate's shoulders while rehearsing a pyramid formation cheer and sustained a serious compound fracture to her left arm that required surgery.1 At the time of her injury, Merav had had four seasons of cheerleading experience at the high school level.
On November 5, 1998, having reached the age of majority, Merav filed suit against the city of Newton, alleging negligence (Count I) and the negligent hiring and retention of the cheerleading coach (Count II).2 The city filed its answer on December 24, 1998. In late October, 1999, during the course of discovery, the city came across a document entitled "Parental Consent, Release from Liability and Indemnity Agreement" signed by Merav and her father in August, 1995, approximately three months prior to the injury. The relevant part of the release reads as follows:
"[I] the undersigned [father]... of Merav Sharon, a minor, do hereby consent to [her] participation in voluntary athletic programs and do forever RELEASE, acquit, discharge, and covenant to hold harmless the City of Newton... from any and all actions, causes of action, [and] claims... on account of, or in any way growing out of, directly or indirectly, all known and unknown personal injuries or property damage which [I] may now or hereafter have as the parent... of said minor, and also all claims or right of action for damages which said minor has or hereafter may acquire, either before or after [she] has reached [her] majority resulting... from [her] participation in the Newton Public Schools Physical Education Department's athletic programs...."
The city filed a motion for summary judgment raising the signed release as a defense.
Merav filed an opposition to the city's motion for summary judgment in which she argued that, because the release had not been raised as an affirmative defense in the city's answer, it should be deemed waived. Shortly thereafter, the city filed a motion to amend its answer in order to add the release as an affirmative defense. One judge in the Superior Court allowed the city's motion to amend on June 30, 2000, and a second judge subsequently allowed the city's motion for summary judgment based on the validity of the release.3 In her ruling, the judge concluded that "[a] contrary ruling would detrimentally chill a school's ability to offer voluntary athletic and other extra- curricular programs."
Merav filed a timely appeal claiming that (1) the motion judge abused her discretion by allowing the city to amend its answer late; (2) the grant of summary judgment was inappropriate because genuine issues of material fact remained in dispute; and (3) the release signed by Merav and her father was invalid because (a) she disavowed it on attaining her majority4; (b) the release violates public policy; (c) the release is contrary to the Massachusetts Tort Claims Act, G. L. c. 258, § 2; and (d) the release is invalid for lack of consideration. We transferred the case here on our own motion and now affirm the grant of summary judgment in favor of the city.5
1. Amendment of the city's answer. Merav claims that the allowance of the city's untimely motion to amend its answer was prejudicial error and that, because the city failed to raise the release as an affirmative defense in its original answer, the defense should be deemed waived.
It is well established that the defense of a release must be raised as an affirmative defense and that the omission of an affirmative defense from an answer generally constitutes a waiver of that defense. See Mass. R. Civ. P. 8 (c), 365 Mass. 749 (1974); Leahy v. Local 1526, Am. Fed'n of State, County & Mun. Employees, 399 Mass. 341, 351-352 (1987), citing J.W. Smith & H.B. Zobel, Rules Practice § 8.6, at 797-798 (1974 & Supp. 1986); Coastal Oil New England, Inc. v. Citizens Fuels Corp., 38 Mass. App. Ct. 26, 29 n.3 (1995). It is equally well settled that a party may amend its pleading by leave of court and that such leave "shall be freely given when justice so requires." Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974). See Foman v. Davis, 371 U.S. 178, 182 (1962) ().
Merav contends that the combination of undue delay and prejudice to her case should have led the judge to deny the city's motion to amend. While we have often upheld a judge's discretion to deny leave to amend based in part on undue delay, such denials have generally been coupled with consideration of other factors such as imminence of trial and futility of the claim sought to be added. See, e.g., Leonard v. Brimfield, 423 Mass. 152, 157 (1996); Mathis v. Massachusetts Elec. Co., 409 Mass. 256, 264 (1991); Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288, 292 (1977). Given that the amendment in this case did not raise a new issue on the eve of trial and could not be considered futile or irrelevant to the city's defense, the judge did not abuse her discretion in granting the motion to amend the city's answer.
2. Summary Judgment.
By proffering the release signed by Merav and her father releasing the city from any claims that Merav might acquire from her participation in the city's athletic program, the city has met its initial burden of demonstrating that Merav's negligence claim is likely to be precluded at trial.6 In response, Merav contends both that there are issues of material fact in dispute regarding the validity of the release, and that it is unenforceable as a matter of law and public policy. We conclude that the facts Merav contends are in dispute are not material, enforcement of the release is consistent with our law and public policy, and Newton is entitled to judgment as a matter of law.
a. Merav's factual contentions. Merav first argues that there are disputed issues of material fact regarding her understanding of the release and its voluntariness. She contends that neither she nor her father realized that by signing the release they were waiving their future claims against the school, and that their understanding of what they signed is a matter of fact to be decided by a jury. As the motion judge properly noted, "[i]t is a rule in this Commonwealth that the failure to read or to understand the contents of a release, in the absence of fraud or duress, does not avoid its effects." Lee v. Allied Sports Assocs., Inc., 349 Mass. 544, 550-551 (1965). The undisputed evidence supports the conclusion that both Merav and her father had ample opportunity to read and understand the release before signing it, and they are therefore deemed to have understood it. Cormier v. Central Mass. Chapter of the Nat'l Safety Council, 416 Mass. 286, 289 (1993).
The release is a clearly labeled, two-sided document, which Merav brought home from school for her parents to review. Merav and her father both signed the front of the release, which they indicated was for the sport of "cheerleading." In addition, they filled out the back of the release that called for information regarding Merav's address, date of birth, health insurance provider, and emergency contacts, and which provided for the purchase of optional student accident insurance through the school (an option which they explicitly declined on the form). Her father also signed the back of the release giving parental consent to a physical examination of Merav prior to her participation in the cheerleading program. In these respects, the circumstances differ substantially from the so-called "baggage check" or "ticket" cases relied on by Merav in which a customer merely purchases a ticket or receives a receipt that contains release language. See Lee v. Allied Sports Assocs., Inc., supra; O'Brien v. Freeman, 299 Mass. 20 (1937); Kushner v. McGinnis, 289 Mass. 326 (1935).
In these "baggage check" and "ticket" cases, we have ruled that the "type of document which the patron receives and the circumstances under which he receives it are not such that a person of ordinary intelligence would assume that the ticket limits the proprietor's liability unless the patron becomes actually aware of that limitation." Lee v. Allied Sports Assocs., Inc., supra at 549-550. Therefore, w...
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