The Law Office of Kurt H King

August 20, 2013

Release Does Not Avoid Liability For Recklessness or Gross Negligence

Filed under: Litigation,Missouri Personal Injury Law — kurthking @ 10:26 pm
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A recent opinion by the Eastern District of the Missouri Court of Appeals shines more light on how exculpatory clauses do not prevent liability for gross negligence (a.k.a., “recklessness”).  Check out Decormier v. Harley Davidson Motor Company Group, Inc., et al., Slip Opinion ED99064, filed August 13, 2013.

There the Eastern District looked back to  Alack v. Vic Tanny Int’l of Mo., where the Missouri Supreme Court cast as “Black Letter Law” the maxim that–

“[E]xculpatory clauses in contracts releasing one from his/her own future negligence may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.  923 S.W.2d at 337.”  (Alack is the subject of another post in this blog.)

Seeing this hole in the armor of exculpatory clauses, plaintiff lawyers seek to plead and prove not only the usual ordinary negligence claim, but also a separate “recklessness claim” seeking damages for defendant’s gross negligence or recklessness.  Such a claim for recklessness was tried to a jury and its verdict for plaintiff upheld on appeal to this same Eastern District in Hatch v. V.P Fair Foundation, 990 S.W.2d 126 (Mo. Ct. App. E.D. 1999).

Before going on, one may ask how did the focus turn to “recklessness” when the Alack case speaks of “gross negligence.”  In Decormier, the defendant made it easy during oral argument on appeal by, in essence, answering “yes, our position is that recklessness is gross negligence.” (Footnote 3 on page 7)  Even without that verbal exchange, the Hatch opinion may well have provided fertile ground for the court to have equated recklessness with gross negligence.

In this new case–Decormier v. Harley Davidson–the plaintiff signed a broad release of Harley Davidson in order to ride the New Rider Course provided by HD.  Sadly, certified instructors sent this new rider out on a course that had turned icy and slippery.  The slick conditions caused plaintiff to lose control of her motorcycle and suffer serious injuries.  Nevertheless, the trial court showed no mercy and granted summary judgment in favor of defendants and against plaintiff based upon the release of liability signed by plaintiff before she rode the course.

However, plaintiff’s petition for damages saved her a day in court because in it her counsel asserted that: (1) defendants knew or should have known that the icy conditions of the [range] created an unreasonable risk of bodily harm; and, (2) defendants knew or should have known that an inexperienced rider on icy or slippery conditions created an unreasonable risk of bodily harm.  These assertions went beyond mere ordinary negligence.  In the Court’s words on page 13, “[t]his language reflects the definition of recklessness.”   And since recklessness/gross negligence is not waived by the exculpatory release of liability, the court of appeals reversed the trial court’s summary judgment for defendants, thereby putting the plaintiff’s case back on track in the trial court.

This appellate court set forth a full description of “recklessness” on page 8 of the opinion.  Boiled down, recklessness exists where there is an unreasonable risk of bodily harm that involves a high degree of probability that substantial harm will result.  To help us distinguish recklessness from ordinary negligence or intentional misconduct, the court gave these signposts:

1.  Ordinary negligence consists of intentionally doing an act with knowledge it contains a risk of harm to others.  Recklessness is a higher, more onerous species of negligence in that there is a high degree of probability that substantial harm will result.   (Page 9)

2.  Intentional conduct is that from which consequences are  “substantially certain” to result; with recklessness, there is just a “strong probability” of harm.  (Page 9)

3.  Put another way: “As the certainty of the consequence decreases, the characterization of the person’s mental state shifts to reckless, then to negligent.”  (Page 9)

The short of all this is that Missouri law now puts a fair sized dent into exculpatory clauses in releases, waivers, contracts, and elsewhere.  These infuriating broad waivers of liability that folks without clout often have to sign are becoming a bit more vulnerable.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068


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January 5, 2011

Waivers/releases of liability in Missouri

Are waivers/releases of liability in leases, gym contracts, etc., binding under Missouri law? Answer: sometimes not.

These provisions are everywhere now days as landlords, gym owners, and many others want the other party to sign standard contracts with provisions that the “little guy” releases or waives all claims he/she may have against the landlord (for example), even if the negligence or fault of the “big” party to the contract is the cause of injury or damage to the “little” party. For example, these provisions are used to bar claims by gym users who are injured by faulty gym equipment, tenants who slip and fall on ice and snow which the landlord failed to remove despite a duty to do so, and on and on.

In the case of Alack v. Vic Tanny International of Missouri, 923 S.W.2d 330 (1996), the Missouri Supreme Court set some limits on these waivers/releases and they should NOT be valid/binding on the injured party unless the written language satisfies these rules.

One requirement is that the waiver/release language must be clear and conspicuous–meaning it should be in bold/large/standout type, preferably referred to in the title, and noted by a subheading or title that stands out and makes it known that the provision deals with waiver/release of liablility. This is particularly true of residential or consumer contracts where the party that is waiving claims of liability of the other party is not as sophiscated or experienced as a commercial business would be. A good idea is to have the waiver/release in a separate document, so titled, and executed by the parties to the agreement

Another requirement is that the waiver/release language be clear, unambiguous, and free of duplicity. For example, take a lease contained 2 separate and different provisions calling for the tenant to waive and relase the landlord from any liability for not timely removing/treating snow and ice at the apartment complex. And, one of the provisions called for the the landlord not to be liable to the tenant for such under any circumstances, while the other provision called for the landlord not to be liable unless it was grossly negligent or intentionally injured the tenant. These provisions obviously differ and are unclear to lawyers–and surely the tenant is confused. Such ambiguous, unclear, and conflicting provisions could and should be struck down by a Missouri court so that the tenant or other “little guy” is free to sue the “big” party for the wrongdoing of the “big” guy.

The Alack court decision above, also states point blank, that “there is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.” More reasons why a waiver/release may be void.

Bottomline: Just because the contract says so, does not mean the waiver/release will hold up in court. Have it checked out by your lawyer to be sure.

Kurt H. King
Law Office of Kurt H. King
20 E. Franklin
Liberty, Clay County, Missouri 64068

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