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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ledgends, Inc. v. Kerr (05/28/2004) sp-5810

Ledgends, Inc. v. Kerr (05/28/2004) sp-5810

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

LEDGENDS, INC., d/b/a              )
THE ALASKA ROCK GYM,          )    Supreme Court No. S-10840
                              )
               Appellant,          )    Superior Court No.
                              )    3AN-01-5350 CI
     v.                       )
                              )
MARY KERR,                    )    O P I N I O N
                              )
               Appellee.      )    [No. 5810 - May 28, 2004]
                              )



          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sharon L. Gleason, Judge.

          Appearances:  Richard A. Weinig,  Pletcher  &
          Weinig,  Anchorage, for Appellant.  Christine
          S.   Schleuss,  Friedman,  Rubin   &   White,
          Anchorage, for Appellee.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Fabe,  and  Carpeneti, Justices.   [Eastaugh,
          Justice, not participating.]

          PER CURIAM


           Mary Kerr was injured at the Alaska Rock Gym when  she

dropped from a climbing wall onto a padded surface.  According to

her  complaint the padded surface had been formed by several mats

whose seams were overlaid by tape.  The tape where she landed was

weak  or  split  and  her foot penetrated  into  the  seam.   Her

movement caused her to suffer a displaced, comminuted fracture of

her right knee.

           Kerr sued Ledgends, Inc., owner of the gym, contending

that  Ledgends had actual knowledge of the condition of the  tape

at  the climbing wall and had negligently failed to maintain  the

premises  in  a  reasonably  safe condition.   Ledgends  answered

denying  knowledge  and  negligence and pled  as  an  affirmative

defense a release that Kerr had signed.  The terms of the release

are set out in Appendix B.

           After  depositions were taken both parties  moved  for

summary  judgment concerning the effect of the release.  Superior

Court  Judge  Sharon  L. Gleason wrote an  opinion  denying  both

motions.   Subsequently  the  parties  agreed  to  a  conditional

settlement  under  which  Ledgends  confessed  judgment  in   the

principal amount of $150,000 subject to an appeal of the  court's

order.  The parties agreed that if this court

          rules  that  the release bars  Kerr's  claims
          based  on  the facts alleged in the complaint
          .  . . the case will terminate with each side
          to bear its own costs and fees.  If the Court
          rules  otherwise, including  remand  for  any
          other   purpose,  payment  upon  the   entire
          confessed  judgment  is due  and  payable  to
          [Kerr] within 30 days.
          
Ledgends now appeals.

           Upon  a  careful  review of the  parties'  briefs  and

arguments,  we  conclude that the superior court properly  denied

Ledgends'  motion for summary judgment for the reasons  expressed

in the court's opinion, attached as Appendix A.

          The judgment of the superior court is AFFIRMED.

          IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

              THIRD JUDICIAL DISTRICT AT ANCHORAGE

MARY KERR,                    )
                              )
               Plaintiff,          )
                              )
v.                            )
                              )
LEDGENDS, INC. d/b/a               )
ALASKA ROCK GYM,              )
                              )
               Defendant.          )    Case No. 3AN-01-05350 CI
                              )


         ODER DENYING CROSS MOTIONS FOR SUMMARY JUDGMENT

      In January 1999 Mary Kerr signed a "Release of Liability  -

Waiver of Claims" in partial consideration for permission to  use

the  facilities at the Alaska Rock Gym (the Gym),  which  is  the

principal place of business of Defendant Ledgends, Inc.   In  her

complaint  in this case, Ms. Kerr alleges that she was bouldering

at the Gym on May 1, 2000.  She alleges that she dropped straight

down  to the mats upon completing a bouldering sequence and  that

her  right  foot  slipped into a weak taped  joint  between  mats

causing  her  body to fall to the mat surface.  Ms. Kerr  alleges

that  she suffered a bone fracture at her right knee in the fall.

She  alleges that the Gym had known of the problems with the tape

where she landed, but had not repaired it.  Ms. Kerr claims  that

her  injury was caused by the Gym's negligent failure to maintain

its  premises  in  a reasonably safe condition for  its  climbing

patrons.  In answer the Gym asserts assumption of the risk as  an

affirmative defense, contending that Ms. Kerr assumed the risk of

injury  by  climbing  at the gym and by signing  the  release  of

liability  in January 1999.  The parties have filed cross-motions

for  summary judgment on the issue of liability under the release

Ms. Kerr signed in January 1999.

       The   Alaska  Supreme  Court  established  the  rules   of

interpreting pre-recreational exculpatory agreements  in  Kissick

v.  Schmierer,  816  P.2d 188 (Alaska 1991).  Under  Kissick  any

ambiguities  in  pre-recreational  exculpatory  clauses  must  be

resolved against the party seeking exculpation.  816 P.2d at 191.

Kissick established that "to be enforced the intent to release  a

party  from liability for future negligence must be conspicuously

and  unequivocally  expressed."  816 P.2d at  191.   The  Kissick

court  stated  that  an  agreement purporting  to  exculpate  the

drafter from liability for negligence or tortious conduct is  not

effective   unless   the  agreement  is  "clear,   explicit   and

comprehensible in each of its essential details."   816  P.2d  at

191.  Finally, Kissick requires that such an agreement, read as a

whole,   must   "clearly  notify  the  prospective  releasor   or

indemnitor  of the effect of signing the release."  816  P.2d  at

191 (citation omitted).

      The  agreement  at  issue in Kissick provided  that  flight

passengers  could  not sue for "any loss, damage,  or  injury  to

[their]  person  or ... property which may occur from  any  cause

whatsoever."  816 P.2d at 189.  When presented with the  question

whether that language precluded widows of passengers killed in an

accident  from bringing wrongful death claims, the Kissick  court

determined  that  because there was an ambiguity  as  to  whether

"injury" included death, the decedents' agreement not to sue  did

not bar their widows' wrongful death claims.  816 P.2d at 192.

      Recently,  in Moore v. Hartley Motors, 36 P.3d 628  (Alaska

2001), the Alaska Supreme Court interpreted a release signed by a

participant  in an ATV safety class, which purported  to  absolve

the defendants from "any and all liability, loss, damage claim or

cause  of action, known or unknown, including but not limited  to

all  bodily  injuries  and property damage  arising  out  of  the

participation in the ATV Rider Course."  In reversing  the  entry

of  summary  judgment  against  a participant  injured  when  her

vehicle  hit a rock in high grass just off the course, the  Moore

court  concluded  that the release at issue  purported  to  waive

liability  only for the inherent risks of ATV riding.  The  court

determined that the release did not suggest "an intent to release

[the  defendants] from liability for acts of negligence unrelated

to  those  inherent risks."  36 P.3d at 633.  Instead, the  court

found  that  "underlying the ATV course release  signed  by  [the

participant] was an implied and reasonable presumption  that  the

course  is not unreasonably dangerous."  The court then concluded

that   the  injured  rider's  allegation  that  the  course   was

improperly laid out was actionable to the extent that she claimed

the  course  was  unreasonably dangerous because it  posed  risks

beyond  the ordinary risks of off-road ATV riding assumed by  the

release.

      In  the cases discussed above the exculpatory agreement was

determined  to be inadequate to preclude the plaintiffs'  claims.

Those  cases  offer  little guidance as to  what  language  could

effectively accomplish a waiver of liability for future language,

but  the cases demonstrate that under Alaska law pre-recreational

exculpatory agreements have been held to a very high standard  of

clarity  and that any ambiguity in that regard should be strictly

construed against the party seeking exculpation.

      In  this case, the Gym contends that its release eliminates

liability  for  injuries  caused by negligence  or  by  equipment

defects.  Ms. Kerr contends that the language of the release does

not  eliminate  the Gym's liability for its own negligence.   She

contends  that the release warranted that the Gym would keep  its

premises  reasonably safe and that the language  in  the  release

relating  to  negligence  and  defects  does  not  clearly  alert

climbers  that  they  are absolving the Gym  from  liability  for

anything  more than the inherent risk of climbing.  Finally,  Ms.

Kerr  contends that liability for the gym negligently ignoring  a

known hazard is not unambiguously released.

      The  Gym  argues  that  its release  is  clearer  than  the

agreements  that  were  at issue in the  Alaska  appellate  cases

discussed  above.  In so arguing, the Gym emphasizes the  use  of

the word "negligence" in a portion of Paragraph 4 of the release,

which reads:

          By signing below, you certify and agree that:
          
               ...
          
                you  release the Alaska Rock  Gym,  its
          owners,  operators,  employees,  or  insurers
          from any liability arising from or related to
          the use of the Alaska Rock Gym by you or your
          guests,  including  any  physical  or  mental
          injury,  death,  or   property  loss.    This
          release means you waive any right to  make  a
          claim  against or sue the Alaska Rock Gym  or
          the  other  listed parties for any injury  or
          loss  of any kind, regardless of whether  the
          injury was allegedly caused by the negligence
          of  the Gym or its staff, other users of  the
          Gym,  a  defect in the equipment, structures,
          building or parking lot, or any other cause.
          
Although  Kissick quotes language from legal treatises suggesting

that a drafter seeking to remove liability for negligence must do

so  clearly, "as by using the word `negligence' itself," 816 P.2d

at  191, the use of the word "negligence" alone in Paragraph 4 of

the  Gym's release does not definitively establish the  scope  of

this  release.  Under Kissick, courts considering agreements that

purport to release the drafter from liability for negligence must

consider the agreement "as a whole."  816 P.2d at 191.   And  the

agreement  as  a  whole  must  demonstrate  a  "conspicuous   and

unequivocally  expressed  intent  to  release  from   liability."

Moore, 36 P.3d at 632 (quoting Kissick, 816 P.2d at 191).

      When read as a whole, the document Ms. Kerr signed does not

clearly  and unequivocally express an intent to release  the  Gym

for  liability for its own future negligence.  Some  portions  of

the document suggest the Gym's intent to accomplish ends directly

at  odds  with  a  complete  waiver of the  Gym's  liability  for

negligence.   For  example, Paragraphs 1 and  2  of  the  release

signed  by Ms. Kerr both emphasize the inherent risks of climbing

and  thus  suggest that the document is intended to  assure  that

customers are aware of the inherent risks of climbing over  which

the  Gym,  by definition, could have no control.1  Cf. Moore,  36

P.3d  at  633  (defining inherent risks of sport as dangers  that

could  not  be  eliminated through exercise of reasonable  care).

Paragraphs  2  and 3 of the release state that the Gym  tries  to

make  its  facilities safe, to provide appropriate equipment  and

"to  keep  the  equipment in good condition."  The  release  also

suggests  that  customers make their own efforts to  inspect  the

facility for themselves before climbing.  The representations  in

the release regarding the Gym's own efforts toward safety suggest

that  the  release was predicated on a presumption that  the  Gym

would  strive  to  meet the standards of maintenance  and  safety

mentioned in the release.

      Read  as  a  whole, the release does not conspicuously  and

unequivocally  alert  climbers that they  are  giving  up  claims

against the Gym beyond those associated with the inherent risk of

bouldering.   The  release does not clearly alert  climbers  that

they  are  giving up any claims that the Gym failed to  meet  the

standards  of  maintenance and safety that the  Gym  specifically

indicates in the release that it will strive to achieve and  upon

which  the  release may have been predicated.  Any  ambiguity  in

this regard must be construed against the Gym as the drafter of a

pre-recreational exculpatory contract seeking to avoid  liability

for negligence.  Kissick, 816 P.2d at 191.

      In  this case, Ms. Kerr claims that the Gym failed to  meet

basic  standards of maintenance and safety by failing to  correct

known hazards and thereby caused her knee injury.  Because such a

claim  is  not conspicuously and unequivocally precluded  by  the

document read as a whole, this court concludes that Ms.  Kerr  is

not barred by the release from bringing her claim and the Gym  is

not entitled to summary judgment on the issue of liability.

     . . . .

     Entered at Anchorage, Alaska this 5th day of March, 2002.

                                        /s/ Sharon L. Gleason
                                        Superior Court Judge
FOR USE BY ADULT            Climber's Name:______________________
GYM USER

             RELEASE OF LIABILITY - WAIVER OF CLAIMS

1.   Familiarize Yourself with the Alaska Rock Gym.

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.

2.   Understand Any Risks.

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.

3.   Use of Equipment and Rentals

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.

4.   Release of Liability.

By signing below, you certify and agree that:

     ! there is no medical reason why you could not participate
     in activities at the Alaska Rock Gym;
!     you have had full opportunity to inspect the Gym, and you
     understand the activities that are carried out here;
!     you release the Alaska Rock Gym, its owners, operators,
     employees, or insurers from any liability arising from or
     related to the use of the Alaska Rock Gym by you or your
     guests, including any physical or mental injury, death or
     property loss.  This release means you waive any right to
     make a claim against or sue the Alaska Rock Gym or the other
     listed parties for any injury or loss of any kind,
     regardless of whether the injury was allegedly caused by the
     negligence of the Gym or its staff, other users of the Gym,
     a defect in equipment, structures, building or parking lot,
     or any other cause.

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.

______________________________________________
Date:____________
Climber's Signature
_______________________________
1Paragraph 1 begins:  "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."  Paragraph 2 begins by stating:  "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."