Doyice Cotten
Joseph Kuchta, while socializing with friends at Gilley’s Nightclub in Sparks, Nevada, observed the operation of a mechanical bull. He expressed interest in a gentle ride like the ones he had observed, termed a 2 out of a possible 10 in roughness. The employee demonstrated how easy a slow ride was and Kuchta agreed to do it. He was required to sign a liability waiver which stated the potential risks and possible injuries involved in riding the bull, including broken bones. In it, he also released Sheltie Opco from any and all liability for injuries or negligence that occur from all risks, both known and unknown.
According to Kuchta, once on the bull, the ride was initially slow, but after about 20 seconds, the operator significantly increased the speed and violence of the bull’s movements. He was thrown off and suffered a fractured pelvis. He sued alleging negligence, negligence per se, negligent hiring and respondent superior, negligent supervision, negligent entrustment, and battery.
Sheltie Opco moved for summary judgment on all claims, arguing there was no genuine issue of fact because Kuchta expressly assumed the risks of the ride when he signed the waiver. The district court granted Sheltie Opco’s motion for summary judgment.
On appeal (Kuchta v. Sheltie Opco, LLC, 2020), Kuchta argued that he expressly assumed the risks of a gentle ride – not all of the risks on the waiver. The court noted that a in Nevada, a waiver is a “valid exercise of the freedom of contract.” Further, it said waivers are generally enforceable provided the contract meets four standards:
(1) Contracts providing for immunity for liability for negligence must be construed strictly since they are not favorite[s] of the law . . . ;
2) such contracts must spell out the intention of the party with the greatest particularity . . . and show the intent to release from liability beyond doubt by express stipulation and no inference from the words of general import can establish it . . .
(3) such contracts must be construed with every intendment against the party who seeks immunity from liability . . .
(4) the burden to establish immunity from liability is upon the party who asserts such immunity . . . .
In looking at the waiver, the court found
FULLY RELEASE FROM ALL LIABILITY ARISING FROM MY PARTICIPATION IN THE MECHANCIAL BULL RIDING PROGRAM the Nugget Hotel and Casino, Gilley’s, and their respective owners . . . . I AGREE NEVER TO SUE ANY RELEASEE . . . for any cause of action arising from my participation in the MECHANICAL BULL RIDING PROGRAM . . . . ALL PROVISIONS OF THIS AGREEMENT APPLY IRRESPECTIVE OF AND EVEN IN THE CASE OF [ ] NEGLIGENCE . . . .
Nevertheless, the court added that it must determine whether Kuchta expressly assumed the risks contemplated in the waiver. It noted that there are two aspects to assuming a risk:
1) “… there must have been voluntary exposure to the danger and
2) … there must have been actual knowledge of the risk assumed.”
The court went on to say that actual knowledge involves
1) the nature and extent of the injuries,
2) the haste or lack thereof with which the release was obtained, and
3) the understandings and expectations of the parties at the time of signing.”
The court discussed that “… the parties appeared to have agreed to a separate oral agreement concerning the speed of or difficulty of the ride that does not contradict the express terms of the waiver.” It added that there is no evidence that the operator had authority to make such an agreement, thus there is a factual question regarding the waiver.
In conclusion, the court ruled that summary judgment was inappropriate and sent the case back to the district court for trial. (For those who disagree, one judge agreed with you and added a long dissent arguing the summary judgment ruling was correct.)
Photo Credit: Thanks to Wellswebdesign_com via Flickr.