Van Tuyn v. Zurich American Insurance Co.

District Court of Appeal of Florida, Fourth District · 1984 · Torts

Tortsexculpatory clausesassumption of risksummary judgmentmechanical bullwaiverreleaseown negligence

Facts

Plaintiff went to Club Dallas, where patrons were invited to ride a mechanical bull designed to dislodge riders. After watching others ride, plaintiff told the operator she had never ridden before and asked him to go slowly; according to plaintiff, he responded that they would take care of it. Before riding, plaintiff signed but did not read a written waiver stating that she assumed risks and released Club Dallas from claims arising from riding the bull. Plaintiff testified that after about ten to fifteen seconds, the operator suddenly sped up the bull very fast and raised the front at high speed, causing her to lose balance, fall onto the bull's head, and then off the device, injuring herself.

Issue

Did the signed waiver and the doctrine of assumption of risk bar plaintiff's recovery as a matter of law and justify summary judgment for defendants? Also, did the record conclusively show that plaintiff's injury resulted only from risks inherent in riding the mechanical bull rather than from defendants' added negligence?

Rule

An exculpatory clause may absolve a defendant from liability for its own negligence only if it clearly and unequivocally states that intent. Express assumption of risk is valid only when the plaintiff knew or should have known and appreciated the particular risk and understood that she was assuming the particular conduct by the defendant that caused the injury; no agreement to assume unknown risks will be inferred. Under primary-implied assumption of risk, a defendant owes no duty as to inherent and unavoidable risks of an activity, but if the defendant's conduct increases or adds risks not normally inherent in the activity, a duty arises and negligence may be found.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At an indoor climbing gym in Tampa, Nora Ellis signed a form stating that climbing is dangerous, that she assumes all risks of participation, and that she releases Sunport Climbing Center from all claims arising out of her use of the facility. During a beginner session, an employee allegedly failed to secure the belay device properly, and Nora fell.

If the gym moves for summary judgment solely on the written release, which is the strongest argument against summary judgment?

Explanation. The majority rule is that an exculpatory clause may relieve a defendant of liability for its own negligence only if the contract clearly and unequivocally says so. General language releasing the facility from all claims arising from participation is insufficient if it does not expressly manifest an intent to cover the defendant's own negligence. (Derived from Van Tuyn v. Zurich American Insurance Co. (n.d.).)