Ambiguity in Missouri: Meaning of “any” and “any and all” in Waivers

By Doyice Cotten

2849184409_2cec9d07d6Colleen Holmes, a participant in a racing event, tripped over an audio-visual box at the event. She filed suit against the television station claiming the waiver signed by the plaintiff was unenforceable because of ambiguity in the language (Holmes v. Multimedia KSDK, Inc., 2013).

RACE WAIVER AND RELEASE

(Participant must sign in order to be eligible to participate in Race): I understand that my consent to these provisions is given in consideration for being permitted to participate in this Event. . . . I am a voluntary participant in this Event, and in good physical condition. I know that this Event is a potentially hazardous activity and I hereby voluntarily assume full and complete responsibility for, and the risk of, any injury or accident that may occur during my participation in this Event or while on the premises of this Event. I, for myself, my next of kin, my minor children that attend the Event, my heirs, administrators, and executors, hereby release and hold harmless and covenant not to file suit against The Susan G. Komen Breast Cancer Foundation, Inc., D/B/A Susan G. Komen for the Cure, The St. Louis Affiliate of The Susan G. Komen Breast Cancer Foundation D/B/A The St. Louis Affiliate of Susan G. Komen for the Cure, their Affiliates and any affiliated Individuals, any Event sponsors and their agents and employees, and all other persons or entities associated with this Event (collectively, the “Releasees”) for any injury or damages I might suffer in connection with my participation in this Event or while on the premises of this Event. This release applies to any and all loss, liability, or claims I may have arising out of my participation in this Event, including but not limited to, personal injury or damage suffered by me or others, whether such losses, liabilities, or claims be caused by falls, contact with and/or the actions of other participants, contact with fixed or non-fixed objects, contact with animals, conditions of the premises of the Event, negligence of the Releasees, risks not known to me or not reasonably foreseeable at this time, or otherwise. [Emphasis added.]

First, plaintiffs claim the release is ambiguous in that it did not clearly and explicitly set forth the individuals and entities it purported to release from liability. The release stated “The St. Louis Affiliate of Susan G. Komen for the Cure, their affiliates, and any affiliated individuals, any Event sponsors and their agents and employees, and all other persons or entities associated with this Event . . . .” They argued that the highlighted language is ambiguous because it does not specifically name the individuals and entities being released, contending that such specificity is required in a prospective release (particular concern centered on event sponsors since some sponsors were added after the waiver was signed). The court disagreed stating:

We have routinely held that the word “any” when used with a class in a release is all-inclusive, it excludes nothing, and it is not ambiguous. In Angoff, the court held that an agreement not to assert “any claim” against investors resulting from a company’s insolvency included a claim that the investors had failed to pay a sum due under a promissory note. . . . Likewise, a release that releases claims against “any and all persons” is unambiguous and enforceable to bar claims against third parties who were not parties to the release, and it is not necessary that the release identify those persons by name or otherwise. Thus, under these cases the release of “any Event sponsors” unambiguously releases all Event sponsors without exclusion, and it is not necessary that each sponsor be named.

In addition, the court pointed out that the waiver contained specific reference to the “negligence of the releasees;” the court stressed  that, to be enforceable in Missouri, a waiver must contain clear, unambiguous unmistakable and conspicuous language in order to provide release from liability for the provider’s negligence. In fact, the court referred to Alack v. Vic Tanny (1996) in which the Supreme Court established that the words “negligence” or “fault” or their equivalent must be used to make clear the intent of the contract. Further, the Alack court affirmed that the words “any and “all” were NOT equivalent to “negligence” and did NOT encompass the negligence of the provider. Alack stressed the phrase “any and all,” when relating to the exculpatory language, possesses a “latent ambiguity.” Such being the case, to clearly state “negligence of the provider” is not only desirable, but necessary.

Summary

The message seems quite clear. In Missouri, “any” or “all” would seem to be satisfactory when naming protected parties; however, they are inadequate when describing exculpated actions of the provider. It is imperative to note, however, that courts in many states enforce waivers referring to “any and all” claims or causes of injury, interpreting “any and all” to include the “negligence of the provider;” in other states, “any and all” is interpreted to include gross negligence, willful and wanton, and/or intentional conduct as well as ordinary negligence – resulting in a violation of public policy and failure of the waiver to protect the provider. Use of the word “negligence,” while required in Missouri, would avoid needless ambiguity in any state.

Photo Credit: Thanks go to Marion Doss  on  Flickr.