You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Ledgends, Inc. v. Kerr (05/28/2004) sp-5810
Ledgends, Inc. v. Kerr (05/28/2004) sp-5810
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
LEDGENDS, INC., d/b/a )
THE ALASKA ROCK GYM, ) Supreme Court No. S-10840
)
Appellant, ) Superior Court No.
) 3AN-01-5350 CI
v. )
)
MARY KERR, ) O P I N I O N
)
Appellee. ) [No. 5810 - May 28, 2004]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sharon L. Gleason, Judge.
Appearances: Richard A. Weinig, Pletcher &
Weinig, Anchorage, for Appellant. Christine
S. Schleuss, Friedman, Rubin & White,
Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Fabe, and Carpeneti, Justices. [Eastaugh,
Justice, not participating.]
PER CURIAM
Mary Kerr was injured at the Alaska Rock Gym when she
dropped from a climbing wall onto a padded surface. According to
her complaint the padded surface had been formed by several mats
whose seams were overlaid by tape. The tape where she landed was
weak or split and her foot penetrated into the seam. Her
movement caused her to suffer a displaced, comminuted fracture of
her right knee.
Kerr sued Ledgends, Inc., owner of the gym, contending
that Ledgends had actual knowledge of the condition of the tape
at the climbing wall and had negligently failed to maintain the
premises in a reasonably safe condition. Ledgends answered
denying knowledge and negligence and pled as an affirmative
defense a release that Kerr had signed. The terms of the release
are set out in Appendix B.
After depositions were taken both parties moved for
summary judgment concerning the effect of the release. Superior
Court Judge Sharon L. Gleason wrote an opinion denying both
motions. Subsequently the parties agreed to a conditional
settlement under which Ledgends confessed judgment in the
principal amount of $150,000 subject to an appeal of the court's
order. The parties agreed that if this court
rules that the release bars Kerr's claims
based on the facts alleged in the complaint
. . . the case will terminate with each side
to bear its own costs and fees. If the Court
rules otherwise, including remand for any
other purpose, payment upon the entire
confessed judgment is due and payable to
[Kerr] within 30 days.
Ledgends now appeals.
Upon a careful review of the parties' briefs and
arguments, we conclude that the superior court properly denied
Ledgends' motion for summary judgment for the reasons expressed
in the court's opinion, attached as Appendix A.
The judgment of the superior court is AFFIRMED.
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT AT ANCHORAGE
MARY KERR, )
)
Plaintiff, )
)
v. )
)
LEDGENDS, INC. d/b/a )
ALASKA ROCK GYM, )
)
Defendant. ) Case No. 3AN-01-05350 CI
)
ODER DENYING CROSS MOTIONS FOR SUMMARY JUDGMENT
In January 1999 Mary Kerr signed a "Release of Liability -
Waiver of Claims" in partial consideration for permission to use
the facilities at the Alaska Rock Gym (the Gym), which is the
principal place of business of Defendant Ledgends, Inc. In her
complaint in this case, Ms. Kerr alleges that she was bouldering
at the Gym on May 1, 2000. She alleges that she dropped straight
down to the mats upon completing a bouldering sequence and that
her right foot slipped into a weak taped joint between mats
causing her body to fall to the mat surface. Ms. Kerr alleges
that she suffered a bone fracture at her right knee in the fall.
She alleges that the Gym had known of the problems with the tape
where she landed, but had not repaired it. Ms. Kerr claims that
her injury was caused by the Gym's negligent failure to maintain
its premises in a reasonably safe condition for its climbing
patrons. In answer the Gym asserts assumption of the risk as an
affirmative defense, contending that Ms. Kerr assumed the risk of
injury by climbing at the gym and by signing the release of
liability in January 1999. The parties have filed cross-motions
for summary judgment on the issue of liability under the release
Ms. Kerr signed in January 1999.
The Alaska Supreme Court established the rules of
interpreting pre-recreational exculpatory agreements in Kissick
v. Schmierer, 816 P.2d 188 (Alaska 1991). Under Kissick any
ambiguities in pre-recreational exculpatory clauses must be
resolved against the party seeking exculpation. 816 P.2d at 191.
Kissick established that "to be enforced the intent to release a
party from liability for future negligence must be conspicuously
and unequivocally expressed." 816 P.2d at 191. The Kissick
court stated that an agreement purporting to exculpate the
drafter from liability for negligence or tortious conduct is not
effective unless the agreement is "clear, explicit and
comprehensible in each of its essential details." 816 P.2d at
191. Finally, Kissick requires that such an agreement, read as a
whole, must "clearly notify the prospective releasor or
indemnitor of the effect of signing the release." 816 P.2d at
191 (citation omitted).
The agreement at issue in Kissick provided that flight
passengers could not sue for "any loss, damage, or injury to
[their] person or ... property which may occur from any cause
whatsoever." 816 P.2d at 189. When presented with the question
whether that language precluded widows of passengers killed in an
accident from bringing wrongful death claims, the Kissick court
determined that because there was an ambiguity as to whether
"injury" included death, the decedents' agreement not to sue did
not bar their widows' wrongful death claims. 816 P.2d at 192.
Recently, in Moore v. Hartley Motors, 36 P.3d 628 (Alaska
2001), the Alaska Supreme Court interpreted a release signed by a
participant in an ATV safety class, which purported to absolve
the defendants from "any and all liability, loss, damage claim or
cause of action, known or unknown, including but not limited to
all bodily injuries and property damage arising out of the
participation in the ATV Rider Course." In reversing the entry
of summary judgment against a participant injured when her
vehicle hit a rock in high grass just off the course, the Moore
court concluded that the release at issue purported to waive
liability only for the inherent risks of ATV riding. The court
determined that the release did not suggest "an intent to release
[the defendants] from liability for acts of negligence unrelated
to those inherent risks." 36 P.3d at 633. Instead, the court
found that "underlying the ATV course release signed by [the
participant] was an implied and reasonable presumption that the
course is not unreasonably dangerous." The court then concluded
that the injured rider's allegation that the course was
improperly laid out was actionable to the extent that she claimed
the course was unreasonably dangerous because it posed risks
beyond the ordinary risks of off-road ATV riding assumed by the
release.
In the cases discussed above the exculpatory agreement was
determined to be inadequate to preclude the plaintiffs' claims.
Those cases offer little guidance as to what language could
effectively accomplish a waiver of liability for future language,
but the cases demonstrate that under Alaska law pre-recreational
exculpatory agreements have been held to a very high standard of
clarity and that any ambiguity in that regard should be strictly
construed against the party seeking exculpation.
In this case, the Gym contends that its release eliminates
liability for injuries caused by negligence or by equipment
defects. Ms. Kerr contends that the language of the release does
not eliminate the Gym's liability for its own negligence. She
contends that the release warranted that the Gym would keep its
premises reasonably safe and that the language in the release
relating to negligence and defects does not clearly alert
climbers that they are absolving the Gym from liability for
anything more than the inherent risk of climbing. Finally, Ms.
Kerr contends that liability for the gym negligently ignoring a
known hazard is not unambiguously released.
The Gym argues that its release is clearer than the
agreements that were at issue in the Alaska appellate cases
discussed above. In so arguing, the Gym emphasizes the use of
the word "negligence" in a portion of Paragraph 4 of the release,
which reads:
By signing below, you certify and agree that:
...
you release the Alaska Rock Gym, its
owners, operators, employees, or insurers
from any liability arising from or related to
the use of the Alaska Rock Gym by you or your
guests, including any physical or mental
injury, death, or property loss. This
release means you waive any right to make a
claim against or sue the Alaska Rock Gym or
the other listed parties for any injury or
loss of any kind, regardless of whether the
injury was allegedly caused by the negligence
of the Gym or its staff, other users of the
Gym, a defect in the equipment, structures,
building or parking lot, or any other cause.
Although Kissick quotes language from legal treatises suggesting
that a drafter seeking to remove liability for negligence must do
so clearly, "as by using the word `negligence' itself," 816 P.2d
at 191, the use of the word "negligence" alone in Paragraph 4 of
the Gym's release does not definitively establish the scope of
this release. Under Kissick, courts considering agreements that
purport to release the drafter from liability for negligence must
consider the agreement "as a whole." 816 P.2d at 191. And the
agreement as a whole must demonstrate a "conspicuous and
unequivocally expressed intent to release from liability."
Moore, 36 P.3d at 632 (quoting Kissick, 816 P.2d at 191).
When read as a whole, the document Ms. Kerr signed does not
clearly and unequivocally express an intent to release the Gym
for liability for its own future negligence. Some portions of
the document suggest the Gym's intent to accomplish ends directly
at odds with a complete waiver of the Gym's liability for
negligence. For example, Paragraphs 1 and 2 of the release
signed by Ms. Kerr both emphasize the inherent risks of climbing
and thus suggest that the document is intended to assure that
customers are aware of the inherent risks of climbing over which
the Gym, by definition, could have no control.1 Cf. Moore, 36
P.3d at 633 (defining inherent risks of sport as dangers that
could not be eliminated through exercise of reasonable care).
Paragraphs 2 and 3 of the release state that the Gym tries to
make its facilities safe, to provide appropriate equipment and
"to keep the equipment in good condition." The release also
suggests that customers make their own efforts to inspect the
facility for themselves before climbing. The representations in
the release regarding the Gym's own efforts toward safety suggest
that the release was predicated on a presumption that the Gym
would strive to meet the standards of maintenance and safety
mentioned in the release.
Read as a whole, the release does not conspicuously and
unequivocally alert climbers that they are giving up claims
against the Gym beyond those associated with the inherent risk of
bouldering. The release does not clearly alert climbers that
they are giving up any claims that the Gym failed to meet the
standards of maintenance and safety that the Gym specifically
indicates in the release that it will strive to achieve and upon
which the release may have been predicated. Any ambiguity in
this regard must be construed against the Gym as the drafter of a
pre-recreational exculpatory contract seeking to avoid liability
for negligence. Kissick, 816 P.2d at 191.
In this case, Ms. Kerr claims that the Gym failed to meet
basic standards of maintenance and safety by failing to correct
known hazards and thereby caused her knee injury. Because such a
claim is not conspicuously and unequivocally precluded by the
document read as a whole, this court concludes that Ms. Kerr is
not barred by the release from bringing her claim and the Gym is
not entitled to summary judgment on the issue of liability.
. . . .
Entered at Anchorage, Alaska this 5th day of March, 2002.
/s/ Sharon L. Gleason
Superior Court Judge
FOR USE BY ADULT Climber's Name:______________________
GYM USER
RELEASE OF LIABILITY - WAIVER OF CLAIMS
1. Familiarize Yourself with the Alaska Rock Gym.
Climbing, exercising and other activities involve certain risks.
It is very important that you look around the Alaska Rock Gym
before you climb or exercise here so that you understand the
nature of the Gym and the activities that happen here. Please
feel free to visit the Gym anytime for a tour. Watch people
climb. Our staff will be more than happy to show you around and
answer any questions you may have.
2. Understand Any Risks.
The Alaska Rock Gym is a place for physical exercise, notably
climbing, and there are risks inherent in any physical activity.
These can range from things as simple as slipping on a floor or
dropping a barbell to things as complicated as a failure of
equipment or climbing structures or the inattention of another
climber. While we try to make the Gym a safe place, it is
ultimately up to you to understand the risks BEFORE engaging in
any physical activity. Understand your own physical limits. If
you have not been involved in a regular course of exercise, it is
always a good idea to check with your doctor before beginning.
Finally, the Alaska Rock Gym is a public place. Please safeguard
your personal property. The Alaska Rock Gym cannot be liable for
any loss or damage to personal property or possessions.
3. Use of Equipment and Rentals
The Alaska Rock Gym sells and rents equipment and other items,
and it provides other equipment, such as ropes, carabiners, and
exercise equipment, for the use of its customers. While we
strive to provide appropriate equipment for people of all
abilities and to keep the equipment in good condition, it remains
to you, the user, to educate yourself as to the proper use of the
equipment. Please ask any staff member if you have any
questions. Inspect your equipment closely. The Alaska Rock Gym
shall not be liable for any injuries, damages or loss resulting
from any defect, visible or hidden, in any equipment sold, rented
or provided by Alaska Rock Gym.
4. Release of Liability.
By signing below, you certify and agree that:
! there is no medical reason why you could not participate
in activities at the Alaska Rock Gym;
! you have had full opportunity to inspect the Gym, and you
understand the activities that are carried out here;
! you release the Alaska Rock Gym, its owners, operators,
employees, or insurers from any liability arising from or
related to the use of the Alaska Rock Gym by you or your
guests, including any physical or mental injury, death or
property loss. This release means you waive any right to
make a claim against or sue the Alaska Rock Gym or the other
listed parties for any injury or loss of any kind,
regardless of whether the injury was allegedly caused by the
negligence of the Gym or its staff, other users of the Gym,
a defect in equipment, structures, building or parking lot,
or any other cause.
THIS WAIVER OF CLAIMS IS GIVEN IN PARTIAL CONSIDERATION FOR
PERMISSION TO USE THE ALASKA ROCK GYM, AND IT WILL CONTINUE TO
APPLY DURING EACH VISIT TO THE ALASKA ROCK GYM IN THE FUTURE
UNTIL YOU REVOKE IT IN WRITING.
I HAVE READ THIS RELEASE. I UNDERSTAND ITS CONTENT. I AGREE TO
ITS TERMS.
______________________________________________
Date:____________
Climber's Signature
_______________________________
1Paragraph 1 begins: "Climbing, exercising, and other activities
involve certain risks. It is very important that you look around
the Alaska Rock Gym before you climb or exercise here so that you
understand the nature of the Gym and the activities that happen
here." Paragraph 2 begins by stating: "The Alaska Rock Gym is a
place for physical exercise, notably climbing, and there are
risks inherent in any physical activity. These can range from
things as simple as slipping on a floor or dropping a barbell to
things as complicated as a failure of equipment or climbing
structures or the inattention of another climber."
