• The Missouri Supreme Court upholds another pre-activity waiver, but factually-supported allegations of recklessness might defeat such waivers in other cases.
  • February 18, 2015 | Author: Peter B. Hoffman
  • Law Firm: Baker Sterchi Cowden & Rice, L.L.C. - St. Louis Office
  • The Missouri Supreme Court recently issued a new opinion which has significance to both proper summary judgment procedure and whether or not a pre-activity waiver of negligence is enforceable in the face of allegations of gross negligence or recklessness.

    In De Cormier v. Harley-Davidson Motor Co. Group et al., the plaintiff participated in a course for new motorcycle riders, conducted by employees of codefendant Gateway Harley-Davidson. Before participating in the class, she signed a “Release and Waiver,” waiving any claims she might have in the future against any Harley-Davidson entity or dealer for injuries sustained in connection with her participation in the course, including any claims for negligence of Harley-Davidson or its dealers.

    While she was on the course, plaintiff sustained injuries to her leg. She filed suit against both Harley-Davidson and Gateway alleging in Count One, Negligence and in Count Two, Premises Liability. Both defendants moved for summary judgment on the affirmative defense of release, based on the signed waiver. Plaintiff contended that Count II asserted claims of gross negligence and recklessness of the Defendants and therefore, as a matter of law, the release could not waive liability for gross negligence or recklessness.

    The plaintiff supported her opposition to the motion for summary judgment with some evidence, but also by citing to allegations within the Petition. The Trial Court entered Summary Judgment on both Counts in a favor of both Defendants.

    On appeal, the Supreme Court ruled that:
    1. While exculpatory agreements will be strictly construed, such agreements are enforceable to protect a party from liability for its own negligence.
    2. A claim of gross negligence does not defeat the release because Missouri does not recognize degrees of negligence at common law.
    3. A party cannot rely on its own Petition to provide the evidentiary support to create a genuine dispute of material fact in response to a motion for summary judgment.
    4. After disregarding plaintiffs reliance upon the allegations in her own petition, her evidence in opposition to the motion for summary judgment was inadequate to establish a genuine dispute whether the Defendants acted recklessly. Id.
    As a result, in a 5-2 ruling, the Supreme Court affirmed the summary judgment issued by the trial court.

    Practice Points

    In DeCormier, the Missouri Supreme Court has again signaled the need for strict compliance with the procedural requirements of the summary judgment rule(74.04). Although the waiver in this case was upheld, it appears that a properly pleaded and factually supported claim of recklessness might still overcome such a waiver. Stay tuned.