Exculpatory Clause Change / Kentucky case May 20, 2020

KEN KIRSCHENBAUM, ESQ
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Exculpatory Clause Change / Kentucky case
May 20, 2020
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Exculpatory Clause Change / Kentucky case
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Plaintiff went zip lining in recreational area in Kentucky, where he suffered injury when approaching the landing platform; his right ankle. Plaintiff sued Mammoth Cave Adventures, who moved for summary judgment based on the Exculpatory Clause in its Release of Liability Agreement. That agreement had the following provisions:

I acknowledge that participating in the zip line activity is dangerous. I understand the nature and rigors of the activity and the risk involved in participation.
I wish to participate in the zip line activities and as a result, I fully accept and assume all the risks and dangers involved in said activity and accept responsibility for all injuries, losses, costs and damages I incur as a result of the participation in the activity and I release and discharge and covenant not to sue the Mammoth Cave Adventures, LLC, for any liability, claims, damages, demands or losses which I has [sic] been caused by or alleged to have been caused by the actions or negligence of Mammoth Cave Adventures, LLC, and I will indemnify and save and hold it harmless from any litigation expenses, attorney fees, liabilities, damages or costs, it may incur as a result of any claim of mine to the fullness [sic] extent permitted by law.

            The court found that:
            “Specifically, a preinjury release will be upheld only if (1) it explicitly expresses an intention to exonerate by using the word “negligence;” or (2) it clearly and specifically indicates an intent to release a party from  liability for a  personal injury caused by that party’s own conduct; or (3)  protection against negligence is the only reasonable construction of the  contract language; or (4) the hazard experienced was clearly within the contemplation of the provision. “Thus, an  exculpatory  clause must clearly set out the negligence for which  liability is to be avoided.”
            The court addressed the law:

“First, we address Bowling’s negligence arguments. By signing the release of liability, Bowling surrendered his “right to prosecute a cause of action” against MCA. Although exculpatory agreements “are disfavored and are strictly construed against the parties relying upon them,” Bowling fails to assert why the agreement at issue is unenforceable. He does not contest the circuit court’s thorough analysis under Hargis and does not raise a public policy argument under. Instead, Bowling asks this Court to consider whether MCA acted negligently. Bowling signed an exculpatory agreement agreeing not to sue MCA for any damages caused by its alleged negligence, which the circuit court found enforceable. Bowling has no factual basis for his claim against MCA as a matter of law because he signed an enforceable exculpatory agreement. As such, because this agreement cut off Bowling’s right to sue for the injuries he sustained, his allegation that MCA acted negligently does not amount to a genuine issue of material fact to survive summary judgment.”

            It should be noted that this was a 3 panel appellate court and one of the judges dissented. That’s important to know because what might appear to be clear cut enforcement of a contractual exculpatory clause often isn’t easy to enforce. The dissenting judge complained that the exculpatory clause didn’t except gross negligence and also one issue of negligence [Plaintiff being told it was ok to exceed weight restrictions] happened after the Release of Liability Agreement was signed.
            The case is Billy D. Bowling V Mammoth Cave Adventures, Court of Appeals Kentucky.
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Exculpatory clause changed in Standard Form Agreements

            The provision that most persuaded the judges in the above case was the inclusion of the “covenant not to sue” provision. This is really something different than a release or exclusion of liability. The covenant not to sue has now been added to the Standard Kirschenbaum Contracts™ in the exculpatory clause. This is the first substantial upgrade to the 2020 contracts. Those of who have purchased our contracts within 6 months get the updated from free. If you purchased our contracts within a year, but more than 6 months ago, the update is free. If your contracts are more than a year old you need to update anyway; now is a great time. Contact our Contract Administrator Eileen Wagda at 516 747 6700 x 312 or EWadga@Kirschenbaumesq.com.

To order up to date Standard Form Alarm / Security / Fire and related Agreements, click here:  www.alarmcontracts.com
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com