Hanrahan-Fox v. Top Gun Shooting Sports (2019): A Look at Missouri Waiver Law

By Doyice Cotten

Marie Hanrahan-Fox, after patronizing the shooting range operated by Defendant Top Gun Shooting Sports, alleged that she suffered irreversible hearing loss due to the inadequate hearing protection provided her by Top Gun.  She claimed that Top Gun was negligent; in addition, her husband made a claim for loss of consortium.  They also made a products liability claim against Pyramex Safety Products, LLC, which was not before this court.

Top Gun moved for Summary Judgment based on the waiver signed by the plaintiff.  The waiver read as follows:

RELEASE AND HOLD HARMLESS AGREEMENT

In consideration for using the facilities of Top Gun Shooting Sports, LLC, the undersigned Participant HEREBY AGREES TO WAIVERELEASEAND HOLD HARMLESS Top Gun Shooting Sports, LLC from any and all claims for damages for death, personal injury, or property damage which they may have or which they may accrue as a result of participation in any activity and event including, but not limited to, range usage, training, instruction, and organized shooting events.

By signing this Release and Hold Harmless Agreement, the undersigned recognizes that the sport of rifle, pistol, and shotgun shooting or related activities present certain inherent dangers that cannot be eliminated even by the exercise of reasonable care. [Emphasis added.] As such, the undersigned participant hereby expressly assumes the risk that is inherent to the sport of rifle, pistol, and shotgun shooting.

By signing this Release and Hold Harmless Agreement, the undersigned Participant assumes the risk inherent to rifle, pistol, and shotgun shooting, and further acknowledges that he/she understands that all risks, whether known or unknown, are expressly assumed by the undersigned, and that all claims are expressly waived in advance.

By signing this Release, I acknowledge to Top Gun Shooting Sports that I have not been convicted of a Felony, am not currently subject to a restraining order (adult abuse order), nor am I currently under indictment for a Felony Violation. I have not been institutionalized for any mental disorders, nor has a U.S. Judge ordered such an institutional commitment. I have read, understand, and agree to abide by the Range Safety Rules for Top Gun Shooting Sports.

Missouri Waiver Law

In Missouri, releases of future negligence are not void as against public policy, but “they are disfavored and strictly construed.”  Alack vVic Tanny Int’l of MissouriInc., 923 S.W.2d 330, 334 (Mo. 1996)).

  • To effectively release a party from its own future negligence, exculpatory language must be “clear, unambiguous, unmistakable, and conspicuous.”
  • Further, “[t]he exculpatory language must effectively notify a party that he or she is releasing the other party from claims arising from the other party’s own negligence.
  • Accordingly, the Alack Court established a “bright-line test”, requiring that “the words ‘negligence’ or ‘fault’ or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs.”
  • An exculpatory clause that fails to meet these requirements is ambiguous and unenforceable.

Court Ruling on the Waiver:

  • The Court finds that the Agreement is ambiguous under Alack’s bright-line test.
  • The Agreement does not include the words “negligence” or “fault.”

Top Gun argued that the Agreement was valid and enforceable because

  • It “clearly conveyed to Ms. Hanrahan-Fox that she was releasing Top Gun from negligence claims by the broad language regarding waiver, release, and assumption of risk, and her acknowledgement that certain dangers ‘cannot be eliminated even by the use of reasonable care.'”

The court responded that

  • First, the Agreement’s broad waiver language “for any and all claims” is essentially identical to language the Missouri Supreme Court expressly rejected in Alack — (“any and all claims” was ambiguous and does not clearly and unambiguously exonerate sports facility from its own negligence).
  • Second, the language of the Agreement regarding assumption of risk does not satisfy Alack’s bright-line test.
  • Finally, the Agreement’s language providing that “the sport of rifle, pistol, and shotgun shooting or related activities present certain inherent dangers that cannot be eliminated even by the exercise of reasonable care” [Emphasis added.] does not cure the deficiencies described above.
  • Top Gun’s Motion emphasizes this language, apparently suggesting that the phrase “exercise of reasonable care” is equivalent to “negligence” or “fault.”
  • The use of that phrase in the Agreement does not satisfy Alack’s requirement that “exculpatory language must effectively notify a party that he or she is releasing the other party from claims arising from the other party’s own negligence.”
  • The Agreement does not effectively convey that Ms. Hanrahan-Fox was waiving any claim that could arise if Top Gun failed to exercise reasonable care. On the contrary, Ms. Hanrahan-Fox could have reasonably understood this language to refer only to her own exercise of reasonable care.
  • Thus, the language is at least ambiguous. In Missouri, releases of liability for a party’s own negligence must be “clear, unambiguous, unmistakable, and conspicuous.”  The Agreement fails to meet this standard.

For these reasons, the Court ruled that the liability waiver was as a matter of law was unenforceable and could not serve to release Top Gun from liability.

Loss of Consortium

The husband’s claim of loss of consortium is dependent upon the wife’s claim of negligence. Both claims survive summary judgement. The results will depend upon the trial.

Risk Management Takeaway

Always specify that the signer is releasing the provider from liability for injuries resulting from the negligence of the provider.

Photo Credit: Thanks to Clarkmalia via Flickr.