Swartzentruber v. Wee-K Corp.

• Decision Date: 14 January 1997
• Docket Number: No. 96CA502,WEE-K,96CA502
• Citation: 117 Ohio App.3d 420,690 N.E.2d 941
• Parties: SWARTZENTRUBER et al., Appellants, v.CORPORATION, Appellee. * Fourth District, Vinton County
• Court: Ohio Court of Appeals

Page 420

117 Ohio App.3d 420

690 N.E.2d 941

SWARTZENTRUBER et al., Appellants, v. WEE-K CORPORATION, Appellee. ^*

No. 96CA502.

Court of Appeals of Ohio,

Fourth District, Vinton County.

Decided Jan. 14, 1997.

Steve J. Edwards, Grove City, for appellant.

Mollica, Gall, Sloan & Sillery Co., L.P.A., and Steven T. Sloan, Athens, for appellee.

STEPHENSON, Judge.

This is an appeal from a summary judgment entered by the Court of Common Pleas of Vinton County, Ohio, in favor of Wee-K Corporation, defendant below and appellee herein, on the claim brought against it by Krista K. Swartzentruber, plaintiff below and appellant herein. The following error is assigned for our review:

"The trial court erred in granting defendant's motion for summary judgment on the claim of plaintiff Krista Swartzentruber."

The record reveals the following facts pertinent to this appeal. On September 12, 1992, appellant went horseback riding at a livery stable operated by appellee in Vinton County, Ohio. She rented both a horse and riding equipment from appellee and then went riding, whereupon she was thrown from her horse and sustained injuries. Appellant commenced the action below on May 13, 1993, alleging that appellee had been negligent in selecting an appropriate horse, providing the appropriate equipment, and designating an appropriate trail for her to ride. It was further averred that appellee's actions were "willful, wanton and malicious." Matthew Swartzentruber, appellant's husband, also joined in the complaint and asserted a claim for loss of consortium. Together, they demanded $500,000 in compensatory damages.

Appellee filed an answer denying the allegations in the complaint. It also asserted the affirmative defenses that appellant had assumed the risk of injury and that, in any event, she had executed a "release" which barred her from any recovery in negligence. On July 29, 1994, appellee moved for summary on the basis of that release. Appellant filed a memorandum in opposition, challenging the "release" as vague and overbroad and arguing that it was unenforceable. A decision was issued by the lower court on February 28, 1995, finding that the release was "unambiguous on its face" and that appellee was entitled to judgment as a matter of law. An entry to that effect was filed on March 21, 1995. The remaining loss-of-consortium claim was settled and dismissed on February 7, 1996. This appeal followed. ¹

The subject of this appeal is the March 21, 1995 entry of summary judgment, which barred appellant from pursuing claims of negligence and "willful" and "wanton" misconduct against appellee. It is argued on appeal that this judgment was in error. We begin our analysis of this argument by noting that an appeal from a summary judgment is conducted under a de novo standard of review. Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38, 41, 654 N.E.2d 1327, 1328-1329; Doner v. Snapp (1994), 98 Ohio App.3d 597, 600, 649 N.E.2d 42, 43-44; Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588, 641 N.E.2d 265, 271-272. That is to say, we afford no deference whatsoever to the trial court's decision, see Tardy v. Norfolk S. Corp. (1995), 103 Ohio App.3d 372, 379, 659 N.E.2d 817, 821; Oiler v. Willke (1994), 95 Ohio App.3d 404, 407, 642 N.E.2d 667, 669; Shepherd v. United Parcel Serv. (1992), 84 Ohio App.3d 634, 641, 617 N.E.2d 1152, 1156-1157, and conduct our own independent review to determine whether summary judgment was appropriate. McGee v. Goodyear Atomic Corp. (1995), 103 Ohio App.3d 236, 241, 659 N.E.2d 317, 320; Schwartz v. Bank One, Portsmouth, N.A. (1992), 84 Ohio App.3d 806, 809, 619 N.E.2d 10, 11-12; Howard v. Wills (1991), 77 Ohio App.3d 133, 139, 601 N.E.2d 515, 518-519. Summary judgment under Civ.R. 56 is deemed appropriate when the movant demonstrates that (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the opposing party, said party being entitled to have the evidence construed most strongly in his favor. See, generally, Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, at paragraph three of the syllabus; Bostic v. Connor (1988), 37 Ohio St.3d 144, 146, 524 N.E.2d 881, 883-884; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47. It should also be noted that it is the party moving for summary judgment under Civ.R. 56 which bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Dresher v. Burt (1996), 75 Ohio St.3d 280, 292, 662 N.E.2d 264, 273-274; Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, 120, 570 N.E.2d 1108, 1113-1114; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801-802.

Appellee's sole basis for summary judgment below was the "release" of liability signed by appellant before she went horseback riding. It is undisputed in the cause sub judice that appellant executed this release. There is also no indication that there was any fraud or mistake in its procurement. Thus, appellee concludes, it was entitled to judgment in its favor as a matter of law. The lower court reached a similar conclusion, holding that the "release" agreement was valid and enforceable, and precluded any recovery against appellee in the proceedings below. Appellant contends that this was error. We agree, albeit to a limited extent.

Exculpatory contracts which clearly and unequivocally relieve one from the results of his own negligence are generally not contrary to public policy in Ohio. See 17 Ohio Jurisprudence 3d (1980) 532-533, Contracts, Section 97. It is therefore well-settled law that a participant in a recreational activity is free to contract with the proprietor of such activity so as to relieve the proprietor of responsibility for damages or injuries to the participant caused by the negligence of the proprietor. See Simmons v. Am. Motorcyclist Assn., Inc. (1990), 69 Ohio App.3d 844, 846, 591 N.E.2d 1322, 1323-1324; Cain v. Cleveland Parachute Training Ctr. (1983), 9 Ohio App.3d 27, 28, 9 OBR 28, 29-30, 457 N.E.2d 1185, 1186-1187; Seymour v. New Bremen Speedway (1971), 31 Ohio App.2d 141, 147, 60 O.O.2d 236, 239, 287 N.E.2d 111, 116. There is an exception, however, which prohibits a proprietor from contracting to relieve itself from responsibilty for willful or wanton misconduct. See Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 90, 585 N.E.2d 384, 390; see, also, Sanfillipo v. Rarden (1985), 24 Ohio App.3d 164, 168, 24 OBR 253, 257-258, 493 N.E.2d 991, 995-996. We note that appellant's third claim in the cause sub judice alleges "willful, wanton and malicious" misconduct. Even a valid and enforceable exculpatory contract would not relieve appellee from liability for this sort of action. It was clearly error for the trial court to enter summary judgment for appellee on this claim and the matter will be remanded for further proceedings. ²

The more difficult question is whether the exculpatory contract bars appellant from maintaining her action in negligence. As mentioned above, such contracts are not per se void as against public policy. By the same token, however, they are not particularly favored in the law. To that end, the Ohio Supreme Court has consistently held that exculpatory provisions in contracts are to be strictly construed so as not to relieve one from liability for his own negligence unless it is "expressed in clear and unequivocal terms." See Glaspell v. Ohio Edison Co. (1987), 29 Ohio St.3d 44, 46-47, 29 OBR 393, 394-396, 505 N.E.2d 264, 265-267; Kay v. Penn. Rd. Co. (1952), 156 Ohio St. 503, 46 O.O. 417 103 N.E.2d 751, at paragraph two of the syllabus; Dingledy Lumber Co. v. Erie Rd. Co. (1921), 102 Ohio St. 236, 131 N.E. 723, at paragraph one of the syllabus. With this principle in mind, we turn our attention to the following exculpatory provision between the parties below:

"The undersigned is renting a riding horse and equipment from Wee-K CORP., an Ohio corporation, for trail riding over a designed area within the lands of Vinton County, Ohio. The undersigned agrees that he/she will be responsible for the riding horse and related equipment, reasonable wear and tear accepted, and that he/she will pay for any lost equipment at the rates posted within the rental office building. The undersigned understands that Wee-K CORP. cannot assume responsibility for any rider's safety since that depends upon the individual's skill and common sense. Therefore, the undersigned agrees that in consideration of the rental of said riding horse and related equipment he/she does voluntarily assume all risk of accident or damage to his or her person or property and hereby releases and all others associated with it, from any and all claims, demands, actions and causes of action of every kind and nature which he/she now has or might have arising out of any and all personal injuries, damages, expenses, and any loss or damage whatsoever resulting or to result from the rental of the horse and related equipment."

This provision is poorly drafted. Nowhere is it expressly stated that appellee is being relieved of liability for its own negligence. Indeed, the word "negligence" does not even appear in the provision. Appellant urges us to rule that the "release" is unenforceable on that basis alone. We decline. A "release" of liability, as stated above, must be "expressed in clear and unequivocal terms." Kay, supra, at paragraph two of the syllabus; Dingledy Lumber Co., supra, at paragraph one of the syllabus. The better practice would certainly be to expressly state the word "negligence" somewhere in the exculpatory provision. However, the absence of that term does not automatically render the provision fatally flawed. Our research has uncovered several cases where exculpatory contracts...