Memorandum decisions of this court do not create legal precedent. A party wishing to cite such a decision in a brief or at oral argument should review Alaska Appellate Rule 214(d).
The estate of a man who drowned on a rafting trip challenged the validity of the pre-trip liability release. The superior court granted summary judgment in favor of the rafting company. Because there were no genuine issues of material fact and the release was effective under our precedent, we affirm.
In May 2013 Stephen Morton took part in a whitewater rafting trip on Six Mile Creek near Hope. The trip was conducted by NOVA River Runners (NOVA). This case arises out of Morton's tragic death by drowning after his raft capsized.
Before embarking on a rafting trip, participants typically receive and sign NOVA's liability release (the Release). The Release is provided as a single two-sided document. One side is entitled "Participant's Acknowledgment of Risks" and begins with a definition of activities: "any adventure, sport or activity associated with the outdoors and/or wilderness and the use or presence of watercraft, including but not limited to kayaks, rafts, oar boats and glacier hiking and ice climbing equipment, including crampons, ski poles, climbing harnesses and associated ice climbing hardware." The Release then states:
the unique character of the activity. The Release then provides a list of "some, but not all" of the "inherent risks," including "[m]y . . . ability to swim . . . and/or follow instructions" and "[l]oss of control of the craft, collision, capsizing, and sinking of the craft, which can result in wetness, injury, . . . and/or drowning." The Release next asks participants to affirm that they possess certain qualifications, including physical capability and safety awareness. The last section of the first side purports to waive liability for the negligent acts of NOVA and its employees. There is no designated space for signatures or initials on this side.
At the top of the other side, participants are asked to acknowledge that "[They] have read, understood, and accepted the terms and conditions stated herein" and that the agreement "shall be binding upon [the participant] . . . and [their] estate." No terms or conditions appear on this side. There are then three signature blocks where up to three participants can sign, with space to include an emergency contact, allergies, and medications.
Brad Cosgrove, NOVA's "river manager" for this trip, did not recall whether Morton read the Release before signing it, but stated that "[n]obody was rushed into signing" and that he "physically showed each participant" both sides of the Release. Bernd Horsman, who rafted with Morton that day, stated that he recalled "sign[ing] a document that briefly stated that you waive any liability in case something happens" but thought the document only had one side. He did not recall "someone physically show[ing]" the Release to him, but he wasn't rushed into signing it. Both Horsman's and Morton's signatures appear on the Release.
The rafting trip consisted of three canyons. NOVA would routinely give participants the opportunity to disembark after the second canyon, because the third canyon is the most difficult. Morton did not choose to disembark after the second canyon, and his raft capsized in the third canyon. Cosgrove was able to pull him from the river and attempted to resuscitate him. NOVA contacted emergency services and delivered Morton for further care, but he died shortly thereafter.
Morton's widow, Vanessa Langlois, brought suit as the personal representative of Morton's estate (the Estate) in May 2015 under AS 09.55.580 (wrongful death) and AS 09.55.570 (survival), requesting compensatory damages, plus costs, fees, and interest. The Estate alleged that NOVA was negligent and listed multiple theories primarily based on the employees' actions or omissions.
NOVA moved for summary judgment in November 2015, arguing that the Release barred the Estate's claims. NOVA supported its position with the signed Release and affidavits from NOVA's owner and Cosgrove. The Estate opposed and filed a cross-motion for summary judgment to preclude NOVA from relying on the Release. The parties then stipulated to stay formal discovery until the court had ruled on these motions, but agreed on procedures for conducting discovery in the interim if needed. Pursuant to the stipulation, the parties deposed Horsman and filed supplemental briefing.
In June 2016 the superior court granted NOVA's motion for summary judgment and denied the Estate's, reasoning that the Release was valid under our precedent. This appeal followed. The Estate argues that the superior court erred in granting summary judgment because the Release did not satisfy the six elements of our test for a valid waiver.
"We review grants of summary judgment de novo, determining whether the record presents any genuine issues of material fact."
Alaska Statute 09.65.290 provides that "[a] person who participates in a sports or recreational activity assumes the inherent risks in that sports or recreational activity and is legally responsible for . . . death to the person . . . that results from the inherent risks in that sports or recreational activity." The statute does not apply, however, to "a civil action based on the . . . negligence of a provider if the negligence was the proximate cause of the . . . death."
Extrapolating from principles articulated in three earlier cases,
The Estate argues that NOVA's release does not satisfy this test. We analyze these six elements in turn and conclude that NOVA's Release is effective.
The Estate first argues that the Release was not a "conspicuous and unequivocal statement of the risk waived" because the Release was two-sided and the sides did not appear to incorporate each other.
We note that participants in a recreational activity need not read a release for it to be binding if the language of the release is available to them.
The Estate also argues that NOVA's Release "does not specifically and clearly set forth the risk that the NOVA instructors may have been negligently trained or supervised, or that they may give inadequate warning or instructions." But NOVA's Release, like the release in Donahue, "clearly and repeatedly disclosed the risk of the specific injury at issue"
Donahue provides that "a waiver of negligence must be specifically set forth using the word `negligence.'"
The release in Donahue provided: "I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless the [defendant] from any and all claims, demands, or causes of action, . . . including any such claims which allege negligent acts or omissions of [the defendant]."
Here, the Release reads, in relevant part:
NOVA's Release uses the word "negligence" twice, and there is no material difference between the "any and all claims" language used in Donahue and the "any and all liabilities" language used here. We therefore conclude that the Release specifically set forth a waiver of negligence.
Donahue provides that the intent of a release to waive liability for negligence "must be brought home to the releasor in clear, emphasized language."
In Donahue, the clauses addressing negligence "[did] not appear to be `calculated to conceal'" and were "in a logical place where they [could not] be missed by someone who reads the release."
The Release extends to other activities such as "glacier hiking and ice climbing," but any ambiguity is cleared up by the explicit list of inherent risks relating to whitewater rafting. We therefore conclude that the Release brings home to the reader its intent to waive liability for negligence using simple language and emphasized text.
Donahue requires that "the release must not violate public policy."
"Alaska recognizes that recreational releases from liability for negligence are not void as a matter of public policy, because to hold otherwise would impose unreasonable burdens on businesses whose patrons want to engage in high-risk physical activities."
Similarly, here, whitewater rafting, far from being a matter of practical necessity, is an optional activity, meaning that under Moore v. Hartley Motors, Inc., NOVA did not have an advantage in bargaining strength. We therefore conclude that the Release does not violate public policy.
Donahue provides that "if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so."
As we have explained, the Release specifically covered employee negligence by including "employees" in the clause releasing NOVA from liability for negligence. Because the injury — death by drowning — and its alleged cause — employee negligence — are expressly included in the Release, it satisfies this Donahue element.
The Estate correctly notes that the Donahue release specifically covered the risk of "inadequate warnings or instructions" from employees, unlike the general reference to employee negligence here.
Donahue provides that "the release agreement must not represent or insinuate standards of safety or maintenance."
We noted that the release in Donahue "highlight[ed] the fallibility of [the defendant's] employees, equipment, and facilities."
The Estate cites Ledgends, Inc. v. Kerr
But the Release in question here is dissimilar in key ways. Compared to the release in Kerr, which contained language representing safety standards throughout,
Because it satisfies the six Donahue elements, the Release effectively waived NOVA's liability for negligence.
For the reasons explained above, we AFFIRM the superior court's grant of summary judgment in favor of NOVA.
WINFREE, Justice, with whom CARNEY, Justice, joins, dissenting.
I respectfully dissent from the court's decision affirming summary judgment in this case. I cannot agree with the court's conclusions that the self-titled "Participant's Acknowledgement [sic] of Risks"
The court's application of the six factors we approved in Donahue v. Ledgends, Inc.
Consistent with the principle that the purpose of contract interpretation is to give effect to the parties' reasonable expectations,
As can be seen in Appendix A, the Acknowledgment of Risks form's first indication that it might be anything more than what its title suggests appears approximately three-fourths of the way down a densely printed page that, up to that point, has mentioned only "inherent risks." There the form asks participants for a self-evaluation of their abilities. After a line break, the form asks participants to certify that they are "fully capable of participating in these activities" and will "assume full responsibility for [themselves]." Then, without another line break or any heading to signify that the form is transitioning into a liability release rather than an acknowledgment of risks, the document sets out "release" language. While parts of this section are in capital letters, they are not in bold or otherwise set off from the dense text surrounding them. In short, considering the document as a whole, the apparent intent is to hide the release language at the very bottom of a dense, one-page document with a title completely unrelated to release of liability.
Additionally, the signature page in no way alerts the reader that operative release language is contained on another page, presumably the back side of that page. The short paragraph at the top, which the court relies on to hold that the form gave participants adequate notice of the release language, says only, "I have read, understood, and accepted the terms and conditions stated herein and acknowledge that this agreement shall be binding upon myself. . . ." While the court concludes that a reasonable person "would be on notice that the document had another side" solely because of the word "herein," the court fails to explain its conclusion. In fact, Morton's companion who was an experienced adventure traveler as well, Horsman, remembered the document consisting of only one page. As he put it, "[T]he way I read it is `conditions herein.' Well, there's not much herein. . . ."
In addition to the document's overall structure, the Acknowledgment of Risks form fails to comply with several standards we previously have applied to recreational activity releases. Specifically, the mere inclusion of the word "negligence" in the release language is insufficient to make the Acknowledgment of Risks form a full release of all claims. The release we held invalid in Kerr also used the word "negligence," but we agreed with the superior court that "[w]hen read as a whole" the purported release did "not clearly and unequivocally express an intent to release the Gym for liability for its own future negligence" with respect to all matters referenced in the release.
The superior court's Kerr decision, which we adopted and published as expressing our own view, highlighted the ineffectiveness of a release that did not "clearly alert climbers that they [were] giving up any claims that the Gym failed to meet the standards of maintenance and safety that the Gym specifically indicate[d] in the release that it [would] strive to achieve and upon which the release [might] have been predicated."
NOVA indicated in its Acknowledgment of Risks form that it had "taken reasonable steps to provide [a participant] with appropriate equipment and/or skilled guides so [the participant] can enjoy an activity for which [he] may not be skilled." This is a representation that NOVA's guides were adequately skilled to provide participants an enjoyable trip — not one fraught with danger.
The court concludes otherwise because the express statement that NOVA would provide skilled guides is in a sentence that also says rafting "is not without risk" and the Acknowledgment of Risks form then lists several inherent risks of rafting. But none of the listed risks is in any way related to unskilled guides or negligence in screening other participants.
I also disagree with the court's holding that a release is necessarily valid when it sets out the risk of a specific injury — death by drowning in this case — but not its specific cause — negligent training and the provision of unskilled guides. In Donahue we rejected the participant's argument that the release did not specifically and clearly set out the risks being waived because the release not only warned of a risk of falling but also cautioned that instructors and other employees could, through their negligence, cause falls or other types of injury.
Today's decision allows intentionally disguised pre-recreational activity exculpatory releases and effectively lowers the bar for their validity. Because the release does not meet the standards adopted in the precedent Donahue relied on — and because if the "Release" in Kerr was an invalid release, the "Participant's Acknowledgment of Risks" Morton signed must be an invalid release — I respectfully dissent from the court's opinion concluding otherwise.
In consideration of the services of NOVA RIVERRUNNERS INC., their officers, agents, employees, and stockholders, and all other persons or entities associated with those businesses (hereinafter collectively referred to as "the concessionaire"), I agree as follows:
Although the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled, we wish to remind you this activity is not without risk. Certain risks cannot be eliminated without destroying the unique character of the activity. The same elements that contribute to the unique character of the activity can be causes of loss or damage to your equipment, or accidental injury, illness or in extreme cases, permanent trauma or death. We do not want to frighten you or reduce your enthusiasm for the activity, but we do think it is important for you to know in advance what to expect and to be informed of the inherent risks. The following describes some, but not all, of those risks:
1: Changing water flow:
2: Collision, with other participants, any portion of the interior of the craft, other watercraft, man-made or natural objects, including overhanging, submerged and/or semi submerged trees, branches, rocks, boulders and ice:
3: Cold weather and heat related injuries and illnesses including frostbite, heat exhaustion, sunstroke, and dehydration:
4: Inclement weather, lightning, variances and extremes of wind, weather and temperature encounter with or attack by insects, reptiles, and animals:
5: My sense of balance, physical coordination, ability to swim, walk and/or follow instructions:
6: Loss of control of the craft, collision, capsizing, and sinking of the craft, which can result in wetness, injury, exposure to the elements, hypothermia and/or drowning:
7: Getting in or out of the craft:
8: Travel, including hiking, portaging, and travel to or from the activity:
9: The presence of marine life forms:
10: Accidents or illnesses occurring in remote places where there are no available medical facilities.
11: Fatigue, chill and/or dizziness, which may diminish my/our reaction time and increase the risk of accident. I am aware that this activity entails risks of injury or death to myself. I understand the description of these risks is not complete and that other unknown or unanticipated risks may result in injury, illness, or death. I agree to assume responsibility for the risks identified herein and those risks not specifically identified. My participation in this activity is purely voluntary. No one is forcing me to participate. And I elect to participate in spite of the risks.
I possess at least the following qualifications, which I understand are prerequisites to participate in this activity:
A, I am (we are) physically and mentally capable of participating in the activity and/or using the equipment.
B, I am (we are) safety conscious and acknowledge that wearing a U.S. Coast Guard approved personal flotation device ("PFD") while in or upon the watercraft is a basic safety precaution and is required, I/we will consider wearing a helmet when running rapids equivalent to or greater than the AWA Class IV.
C, I recognize that if there are "foot cups" in a craft, they may assist in stabilizing participants and keeping them from falling out of the craft. I am aware however, their use may present an increased risk of knee, ankle, or other injuries as a result of restricted movement. Any use is strictly voluntary and at my/our own risk.
D, I recognize that I will be outfitted with helmet, crampons and a ski pole for glacier hiking trips. I am aware however their use can contribute to tripping and falling which may incur injuries. Any use is at my own risk.
I certify that I am (we are) fully capable of participating in these activities. Therefore, I assume full responsibility for myself, including any minor children, for which I am responsible, for bodily injury, accidents, illnesses, death, loss of personal property, and expenses thereof as a result of those inherent risks and dangers.
I myself and on behalf of my/our heirs, assigns, personal representatives and next of kin, HEREBY RELEASE NOVA RIVERRUNNERS INC., its officers, officials, agents and/or employees, other participants, sponsoring agencies, sponsors, advertisers, and, if applicable, owners and lessors of premises used to conduct the event ("Releasees"), WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss, or damage to persons or property incident to my involvement or participation in these programs, WHETHER ARISING FROM NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent permitted by law.
I, for myself and on behalf of my/our heirs, assigns, personal representatives and next of kin, HEREBY INDEMNIFY AND HOLD HARMLESS all the above Releasees from any and all liabilities incident to my involvement or participation in these programs, EVEN IF ARISING FROM THEIR NEGLIGENCE to the fullest extent permitted by law.
I release claim to and allow the use of any photographic or video material of myself taken by NOVA for the purpose of marketing their activities.
Climbing, exercising and other activities involve certain risks. It is very important that you look around the Alaska Rock Gym before you climb or exercise here so that you understand the nature of the Gym and the activities that happen here. Please feel free to visit the Gym anytime for a tour. Watch people climb. Our staff will be more than happy to show you around and answer any questions you may have.
The Alaska Rock Gym is a place for physical exercise, notably climbing, and there are risks inherent in any physical activity. These can range from things as simple as slipping on a floor or dropping a barbell to things as complicated as a failure of equipment or climbing structures or the inattention of another climber. While we try to make the Gym a safe place, it is ultimately up to you to understand the risks BEFORE engaging in any physical activity. Understand your own physical limits. If you have not been involved in a regular course of exercise, it is always a good idea to check with your doctor before beginning. Finally, the Alaska Rock Gym is a public place. Please safeguard your personal property. The Alaska Rock Gym cannot be liable for any loss or damage to personal property or possessions.
The Alaska Rock Gym sells and rents equipment and other items, and it provides other equipment, such as ropes, carabiners, and exercise equipment, for the use of its customers. While we strive to provide appropriate equipment for people of all abilities and to keep the equipment in good condition, it remains to you, the user, to educate yourself as to the proper use of the equipment. Please ask any staff member if you have any questions. Inspect your equipment closely. The Alaska Rock Gym shall not be liable for any injuries, damages or loss resulting from any defect, visible or hidden, in any equipment sold, rented or provided by Alaska Rock Gym.
By signing below, you certify and agree that:
THIS WAIVER OF CLAIMS IS GIVEN IN PARTIAL CONSIDERATION FOR PERMISSION TO USE THE ALASKA ROCK GYM, AND IT WILL CONTINUE TO APPLY DURING EACH VISIT TO THE ALASKA ROCK GYM IN THE FUTURE UNTIL YOU REVOKE IT IN WRITING.
I HAVE READ THIS RELEASE. I UNDERSTAND ITS CONTENT. I AGREE TO ITS TERMS.