By Doyice Cotten
Troy Czapor executed an exculpatory waiver, releasing Sportsplex from liability arising out of ordinary negligence and assuming the risk of any injury. Czapor alleges that he was playing soccer “when suddenly and without warning his right leg got caught in a depression, hole, seam, rip or tear in the turf.” As a result, Czapor allegedly sustained, inter alia, “a right tibia fracture requiring surgery and hospitalization.” The trial court granted summary judgment based on the following liability waiver and this case, (Czapor v. Sportsplex Operations Group, LLC., 2021)
The waiver language follows:
Waiver: In signing this waiver form below, I release [Sportsplex], and all of their agents, employees, independent contractors, equipment suppliers, and members (hereafter collectively referred to as Sportsplex) from any claims or responsibility for injuries suffered in any activities or events conducted by Sportsplex, whether occurring within or outside of the facility. I knowingly assume all risks associated with participation, even if arising from negligence of the participants or others, and assume full responsibility for my (or my child’s) participation today and on all future dates.
Certification: I, the participant/parent/certify that I am, or my child is, in good physical condition and can participate in sports and related activities, and I further agree and warrant that at any time I believe conditions to be unsafe, I will immediately discontinue further participation for myself or my child in the activity. If an emergency arises, I authorize [Sportsplex] staff to request and/or administer medical treatment to myself, or my child, if necessary.
Assumption of inherent risks: I, the adult participant, or minor participant and parent(s) or guardian(s) (hereafter referred to as participant/parent), understand that all activities of Sportsplex include inherent risks that cannot be totally eliminated regardless of the care taken by Sportsplex. I, the participant/parent know, understand, and appreciate the types of injuries inherent in Sportsplex’s activities, and hereby knowingly assume all inherent risks of the activities. Furthermore, as a participant/parent, on behalf of myself, my spouse, heir, personal representatives, and assigns (releasing parties) do hereby waive, release, discharge and covenant not to sue Sportsplex for alleged liability from any and all claims arising from the ordinary negligence of the protected parties.
Scope: This agreement applies to personal injury, including death, from incidents or illnesses arising from participation in Sportsplex activities including, but not limited to recreational, practice, or competitive activity; events; organized or individual training and conditioning activities; tests; classes and instruction; individual use of facilities; equipment, locker room areas, and all premises, or attendance at such activities whether or not as a participant, including the associated sidewalks and parking lots, and to any and all claims resulting from the damage to, loss of, or theft of property (“the inclusive activities”).
Indemnification: I, the participant/parent, also agree to hold harmless, defend, and indemnify Sportsplex – that is, defend and pay any costs, including damages awarded, investigation costs, attorney’s fees, and related expenses – from any and all claims arising from my or my child’s participation in the inclusive activities. I, the participant/parent, further agree to hold harmless, defend, and indemnify Sportsplex against any and all claims of co-participants, rescuers, and other arising from the conduct of the participant in the inclusive activities.
Clarifying Clauses: I, the participant/parent, confirm that this agreement supersedes any and all previous oral or written promises or agreements. I understand that this is the entire agreement between Sportsplex and myself regarding waiver and acceptance of risk, and cannot be modified or changed in any way by representations or statements by any agent or employees of Sportsplex. I, the participant/parent, understand the foregoing assumption of risk, waiver of liability, and indemnification agreement is intended to be as broad and inclusive as permitted by the laws of the State of Pennsylvania, and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect, and if legal action is brought, the appropriate trial court for the County of Bucks, in the State of Pennsylvania has the sole and exclusive jurisdiction and that only the substantive laws of the State of Pennsylvania shall apply.
Acknowledgement and Understanding: I, the participant/parent, have read and understand this agreement. I understand that I am giving up substantial rights, including the right of the participant/child to sue for damages in the event of death, injury, or loss. I acknowledge that I am voluntarily signing the agreement, and intend my signature to be a complete release of all liability, including that due to ordinary negligence by the protected parties, to the greatest extent allowed by the laws of the State of Pennsylvania.
Also, by signing below, I take all responsibility for knowing and abiding by the rules of the Sportsplex. If I do not abide by the rules of the Sportsplex, I risk being banned from the facility and having my money forfeited.
Sportsplex moved for reconsideration after the trial court’s grant of summary judgment contending the trial court erred because there were numerous genuine issues of material fact. At that time Czapor argued that there was a question as to gross negligence and that gross negligence had been claimed in the language “[s]uch further negligence and carelessness.” The trial court held a hearing on Czapor’s reconsideration motion. At the hearing, counsel for Sportsplex argued that Czapor’s negligence claim was barred by the exculpatory waiver and that he had not mentioned gross negligence during discovery. Sportsplex argued that Czapor had failed to file a motion to amend his complaint to include gross negligence based upon the facts of the case. The trial court denied Czapor’s reconsideration motion and Czapor appealed.
For ease of disposition, the appellate court considered four of Czapor’s claims together. The court focused on the legal standard articulated in the summary judgment rule – “that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the nonmoving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment.”
It stated that in Pennsylvania, gross negligence is “something more than ordinary negligence,”and indicates a ‘want of even scant care’ and an ‘“extreme departure’ from ordinary care.” In other words, the Court explained that “gross negligence does not rise to the level of intentional indifference or ‘conscious disregard’ of risks that defines recklessness, but it is defined as an ‘extreme departure’ from the standard of care, beyond that required to establish ordinary negligence.”
The court stated
Instantly, the record before us, as detailed above, reveals that Czapor mentioned gross negligence for the first time in his response to Sportsplex’s motion for summary judgment. Czapor opposed summary judgment based on his belief that the waiver was unenforceable because “issues of fact” existed regarding Sportsplex’s conduct amounting to grossly negligence conduct. He, however, did not identify the issues or what conduct by Sportsplex allegedly rose to gross negligence.
In sum, we affirm the trial court’s grant of summary judgment in favor of Sportsplex. The exculpatory waiver executed by Czapor relieves Sportsplex from all liability in connection with Czapor’s sole claim for negligence related to his sports injury on the Premises. Additionally, Czapor cannot circumvent the preclusive effect of the waiver because he failed to plead sufficient facts in his complaint to assert a claim for gross negligence. Finally, Czapor failed or timely failed to request the trial court’s leave to amend the complaint.
Risk Management Take-Aways
First, owners and managers would do well to follow Sportsplex’s example of obtaining and using a well-written waiver. There was no question that this waiver protected Sportplex from liability for their negligence.
Second, it is good to see a court in which the mere fact that the plaintiff claims gross negligence (without provision of specific evidence of such negligence) is sufficient to result in the failure of the waiver.
Photo Credit: thanks to Offutt Air Force Base via Flickr.