By Doyice Cotten

 Deanna Perkinson was on a trail ride with a good friend and several others when the horse her friend (Sarah Courson) was riding suddenly kicked her; the result was a broken bone and two subsequent surgeries (Perkinson v. Courson, 2018). The incident occurred during a ride organized by Cross Country Trail Ride, LLC,  in Eminence, Missouri.

The two women lived in Illinois (where this suit was filed), but the incident occurred in Missouri. There was controversy and a long discussion over which state law controlled, with Missouri eventually winning out.

Perkinson filed suit against Courson alleging that she was negligent as she breached her duty of care by:

• failing to warn plaintiff of the horse’s violent propensity to kick others,
• failing to properly train the horse,
• riding too close to plaintiff and plaintiff’s horse when knowing that her horse had a violent propensity to kick others, and
• riding her horse contrary to industry and practice norms.

She claimed that as a result of defendant’s negligence, she was kicked by defendant’s horse without provocation and suffered injury.

The Waiver

Prior to the ride, both Perkinson and Courson signed a liability waiver required by Cross Country Trail Ride, LLC. The waiver follows:

“RELEASE OF LIABILITY—READ BEFORE SIGINING [sic]”

In consideration of being allowed to participate in any way, including but not limited to trail riding, competing, officiating, working for, recreating in any fashion while visiting Cross Country Trail Ride, LLC, and its trail ride program, its related events and activities, I *** the undersigned, acknowledge, appreciate, and agree that;

1. The risk of injury from the activities involved in this program is significant, including the potential for permanent paralysis and death, and while particular skills, equipment, and personal discipline may reduce the risk, the risk of serious injury does exist; and,
2. I KNOWINGLY AND FREELY ASSUME ALL SUCH RISKS, both known and unknown, EVEN IF ARISING FROM NEGLIGENCE OF THE RELEASEES or others, and assume full responsibility for my participation; and,
3. I willingly agree to comply with the stated and customary terms of participation. If, however, I observe any unusual significant hazard during my presence or participation, I will remove myself from participation and bring such to the attention of the Company immediately; and,
4. I, for myself and on behalf of my heirs, assigns, personal representatives, and next of kin, HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS CROSS COUNTRY TRAIL RIDE, LLC, officers, officials, agents and/or employees, other participants, sponsoring agencies, sponsors, advertisers, and, if applicable, owners and lessors of premises used for the activity (‘Releasees’), WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property associated with my presence or participation, WHETHER ARISING FROM THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent permitted by law.
5. Releasor expressly agrees that this release, waiver, and indemnity agreement is intended to be as broad and inclusive as permitted by the laws of the State of Missouri and that if any portion thereof is held invalid, it is agreed that the valid portion shall, not withstanding, continue in full legal force and effect.

Courson claimed she was not negligent because she had no duty to Perkinson based on the fact that Perkinson released her (as an “other participant”) in item 4 of the waiver.

Missouri Waiver Law

Under Missouri law, as in other states, to show negligence, a plaintiff must establish that

1. the defendant had a duty to the plaintiff;
2. the defendant failed to perform that duty; and
3. the defendant’s breach was the proximate cause of the plaintiff’s injury.

Missouri courts have have established some general principles regarding liability and liability waivers. Some are:

1. Under the “assumption of the risk doctrine” a person who “voluntarily consents to accept the danger of a known and appreciated risk[ ] *** may not sue another for failing to protect him from it.”
   1. An express assumption of risk is the simplest application of the doctrine and “recognizes that, when a plaintiff makes an express statement that he is voluntarily accepting a specified risk, the plaintiff is barred from recovering damages for an injury resulting from that risk.”
   2. An express assumption of risk “most often involves a written waiver or release by the would-be plaintiff.”
   3. “. . . in an ‘express assumption of the risk’ case, the plaintiff’s consent relieves the defendant of any duty to protect the plaintiff from injury.”
2. Waivers releasing an individual from his or her own future negligence are disfavored, however, “. . . they are not prohibited as against public policy.”
   1. Waivers “. . . are to be strictly construed against the party claiming the benefit of the contract. . . .”
   2. Waivers protecting a party from acts of future negligence are to use “. . . clear and explicit language . . . .”
   3. In Missouri, the law requires “clear, unambiguous, unmistakable, and conspicuous language in order to release a party from his or her own future negligence.”
   4. In Missouri, general language will not relieve one of his responsibility for negligence.
   5. “The words “negligence” or “fault” or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs. There must be no doubt that a reasonable person agreeing to an exculpatory clause actually understands what future claims he or she is waiving. ”
3. Of particular interest in this case, “[o]nly parties to a contract and any third-party beneficiaries of a contract have standing to enforce that contract.”
   1. To be deemed a third-party beneficiary, the terms of the contract must clearly express intent to benefit the third party or an identifiable class of which the third party is a member [see “other participants” listed as a beneficiary or protected party from suit].
   2. When an express declaration of intent is lacking, a strong presumption exists “ that the third party is not a beneficiary and that the parties contracted to benefit only themselves. ”
4. In Missouri, the primary rule of contract interpretation is to determine and give effect to the intent of the parties.
   1. Intent is determined by considering the plain and ordinary meaning of the contract language.
   2. Each clause in a contract should be read in the context of the contract as a whole, and any interpretation that would render a provision meaningless should be avoided.
   3. Additionally, the parties’ intentions should be “gleaned from the four corners of the contract” unless the contract is ambiguous, in which case a court may resort to considering extrinsic evidence.

The Plaintiff’s Challenges

The plaintiff claims that the waiver has no effect; she maintains that the defendant is not a protected third party. The court disagreed, finding the waiver is unambiguous and clearly expresses an intent to benefit an identifiable class, i.e., “other participants,” of which defendant is a member.

Plaintiff next argued that the phrase “negligence . . . or otherwise” used in item 4 encompasses gross negligence, recklessness, and intentional acts – none of which may gain protection by a waiver. The court disagreed ruling that the phrase does not encompass “other legal theories” such as those named above. It referred to other Missouri cases that allowed the language.

Finally, the plaintiff argued that the waiver was not conspicuous. The court disagreed, pointing out it was titled “release of liability” with the warning to “read before signing.” Further, key language was emphasized by all upper-case type. In addition, the court pointed out that she signed the waiver three times – once for herself and once for each of her two children.

Ruling

The trial court ruled upholding the defendant’s argument that the waiver relieved the defendant of a duty of care. The appellate court agreed with the trial court and upheld the summary judgment in favor of defendant Courson. Perkinson waived any duty Courson might have had.

Risk Management Alert

Good friends do indeed file suit against good friends. Maintain your defense of express assumption of risk.

Photo Credit: Thanks to Virginia State Parks via Flickr.