Kentucky Court of Appeals Upholds Decision Finding Preinjury Liability Waiver Enforceable
The Court of Appeals of Kentucky recently affirmed a trial court decision finding a preinjury liability waiver valid in Bowling v. Asylum Extreme, LLC, No. 2010-CA-001687-MR, 2011 WL 5119151 (Ky. Ct. App. Oct. 28, 2011).
The action arose when Christina Bowling (“Bowling”) was struck in the eye with a paintball, suffering permanent injury. Prior to participating in the paintball game, Bowling read and signed a waiver agreement, but nonetheless later asserted that Asylum Extreme, LLC (“Asylum”) was negligent in failing to instruct her on proper use of her safety mask. The trial court granted Asylum’s motion for summary judgment, finding the waiver valid and enforceable.
On appeal, Bowling argued that the waiver was not sufficiently clear to preclude her claim. In support of this argument, Bowling relied on Hargis v. Baize, 168 S.W.3d 36 (Ky. 2005), where the Kentucky Supreme Court stated that “the wording of the release must be so clear and understandable that an ordinarily prudent and knowledgeable party to it will know what he or she is contracting away; it must be unmistakable.” The court in Hargis set forth four necessary factors for such a release; the release will only be upheld if (1) it uses the word “negligence” to clearly express intent to exonerate, (2) it indicates intent to release a party from liability caused by a person’s own conduct, (3) the only reasonable construction is protection against negligence, and (4) the hazard was clearly contemplated by the agreement.
Having reviewed the waiver, the Court of Appeals of Kentucky disagreed with Bowling’s claim that the waiver was too general:
Our review of the waiver indicates that it clearly states that Bowling was releasing appellees from any liability resulting from negligence. It specifically lists eye injury as a potential injury and clearly and specifically indicates intent to release appellees from liability. Furthermore, the only reasonable construction of the waiver’s language is to release appellees from liability, and the hazard, an eye injury, was clearly, and specifically, contemplated. Thus, not only does the waiver meet one of the Hargis requirements, it meets all four. No ordinarily prudent and knowledgeable party would be unaware as to what he or she was contracting away by signing the waiver. Therefore, the trial court acted properly in enforcing it.
Bowling, 2011 WL 5119151 at *3 (internal citations omitted). Bowling further argued that summary judgment was improper because a question existed as to whether Asylum’s failure to instruct her on proper adjustment of her safety gear constituted willful or wanton negligence. Again, the Court disagreed, finding that Bowling had been instructed not to remove her mask, and that she never complained of it falling off or asked for assistance in adjusting her mask. As such, the Court found no evidence of willful or wanton negligence, and upheld the trial court’s order granting summary judgment for Asylum.