514 N.W.2d 693 (1994) | Cited 0 times | South Dakota Supreme Court | March 30, 1994

SABERS, Justice

Injured softball player filed a complaint against Rapid City Softball Association and Rapid City alleging negligence. Circuit Court granted Defendants' motion for summary judgment because the South Dakota Recreational Use Statutes precluded liability and player signed a release. Player appeals. We reverse and remand.


On April 21, 1989, Darci Johnson (Johnson) signed up to play softball with the Arrow Bonding Outlaws. As required by the Rapid City Softball Association (Association), she signed a roster and paid her $15.00 player fee. A copy of the roster is attached to this opinion.

Johnson, the team manager and a practicing attorney, acknowledges that she signed a roster but not a release. Defendants claim that Johnson admitted that she saw the release prior to signing the roster. According to Johnson's deposition, however, she does not recall whether the release language was printed at the bottom of the roster when she signed it. Johnson testified that if it was, she did not read it.

Johnson injured her right ankle sliding into third base during a softball game on July 24, 1989. The injury occurred at Robbinsdale Park softball complex on one of several fields owned by the City of Rapid City (City). City leases the fields to Association for the purpose of operating a city softball league. Under the lease agreement, Association maintains the fields under the supervision of the City Parks Superintendent.

Johnson filed a Complaint against Association and City alleging negligence in the placement or maintenance of the third base bag. Defendants filed a Motion for Summary Judgment which was granted. Johnson appeals.

1. Whether the Recreational Use Statutes apply to a city-owned softball complex leased to an organized association for valuable consideration when there is a $15 player fee. 1

The circuit court granted Defendants' Motion for Summary Judgment in part because "the South Dakota Recreational Use Statutes preclude liability on the part of the Defendants since the activity is one contemplated by the statutes, and no charge was made for entry onto the softball grounds." 2 "We review summary judgment determinations de novo, independent of the trial court's decision." Silingo v. Village of Mukwonago, 156 Wis. 2d 536, 458 N.W.2d 379, 380 (Wis. Ct. App. 1990) (citation omitted). The construction of a statute and its application to a set of facts present questions of law, matters reviewed by us without deference to the trial court's decision. Id. (citation omitted). 3

The three purposes of recreational use statutes are:

1. To encourage landowners to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes;

2. To refuse to impose upon farmers or other owners of vast tracts of land a duty of reasonable care to visitors who enter for recreational purposes because it would be burdensome and unfair, and

3. To encourage landowners to allow sportsmen to hunt on forest land for the purpose of thinning out excessively large herds of animals which were inhibiting forest production.

Joseph A. Page, The Law of Premises Liability § 5.14, at 117 (2nd ed. 1988). See also Welter, Premises Liability, 33 S.D. L. Rev. at 76 n. 85.

SDCL 20-9-13 provides:

Except as provided in § 20-9-16, an owner of land owes no duty of care to keep the land safe for entry or use by others for outdoor recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on his land to persons entering for outdoor recreational purposes.

And SDCL 20-9-12 provides in part:

(3) "Outdoor recreational purpose," includes, but is not limited to, any of the following activities, or any combination thereof: hunting, fishing, swimming other than in a swimming pool, boating, canoeing, camping, picnicking, hiking, biking, off road driving, nature study, water skiing, winter sports, snowmobiling, viewing or enjoying historical, archaeological, scenic or scientific sites[.]

SDCL 20-9-12(3) provides an extensive list of the activities included within the term "outdoor recreational purpose." While softball is not listed as an "outdoor recreational purpose," the activities are "not limited to" those listed.

Defendants cite Miller v. City of Dayton, 42 Ohio St. 3d 113, 537 N.E.2d 1294 (Ohio 1989), in support of their position that softball is an activity included within the definition of "outdoor recreational purpose." In Miller, however, the Ohio Supreme Court determined that the presence of man-made improvements on the property did not remove the property from statutory protection because the Ohio recreational use statute defined premises as "all * * * lands, ways, waters, and any buildings and structures thereon * * *." 537 N.E.2d at 1296 (emphasis in original) (citing R.C. 1533.-18(A)).

In comparison, the South Dakota statutes exempt from liability owners of land and define land as "land, trails, water, watercourses, private ways and agricultural structures, and machinery or equipment if attached to the realty." SDCL 20-9-12(1). The statute appears to exclude softball fields. See Miller, 537 N.E.2d at 1296 (the essential character of the property should fit within the intent of the statute). Additionally, the South Dakota statute demonstrates a pattern which does not include softball. While the legislature included "winter sports" within the list of activities, "summer sports," and specifically softball, were not listed. The inclusion by the legislature of the term "winter sports" seems to imply consideration and rejection of "summer sports." This indicates that the South Dakota statute does not apply to owners of softball fields.

The Recreational Use Statutes "are in derogation of the common law" and "must be strictly construed." Page, The Law of Premises Liability § 5.14, at 117. Therefore, we refuse to expand the list absent clear legislative intent that the list was intended to include summer sports and softball. See Robbins v. Great Northern Paper Co., 557 A.2d 614, 617 (Me. 1989) (Glassman, J., Dissenting). ("Since the recreational land use statute limits the common law tort liability landowners have toward licensees, . . . the statute should 'be construed to alter the common law only to the extent that the Legislature has made that purpose clear'"). Because softball is not an activity contemplated by the statute, the statute does not provide City and Association immunity from liability for alleged negligence as landowner and lessee of the softball field.

Although this holding is determinative of this issue, the circuit court's Conclusion that the Defendants were entitled to summary judgment because "no charge was made for entry onto the softball grounds" will also be discussed.

SDCL 20-9-16 provides in part:

Nothing in §§ 20-9-12 to 20-9-18, inclusive, limits in any way any liability which otherwise exists:

(2) For injury suffered in any case where the owner of land charges any person who enters or goes on the land for the outdoor recreational use thereof[.]

And SDCL 20-9-12 provides in part:

(4) "Charge," the admission price or fee asked in return for invitation or permission to enter or go upon the land.

Because the recreational use statutes limit common law tort liability, the "charge" ("admission price or fee") exception "must be given the broadest reading that is within the fair intendment of the language used." Robbins, 557 A.2d at 617-18 (Glassman, J., Dissenting) (quoting Copeland v. Larson, 46 Wis. 2d 337, 174 N.W.2d 745, 749 (1970)).

Johnson paid a $15.00 "player fee." According to the roster, the deadline for payment of fees at the Robbinsdale Softball Office was April 22, 1989. The use of the term "deadline" and the deposition of Ronald Jeffries, the team's coach, indicate that if Johnson had not paid her "player fee," she would not have been able to play in the Association. Whether Johnson was "charged" a fee and would have had permission to play on the field or team is a question of fact, inappropriate for summary judgment.

Additionally, Association leased the fields from City for $1.00 and "other good and valuable consideration." The "other" consideration included administration of a softball league open to the public, maintenance of the general grounds, and responsibility for mowing the field and all electrical bills. In addition, City required Association to purchase liability insurance. In construing the exception broadly, we find that the fee of $1.00 combined with "other good and valuable consideration" may constitute a charge within the purview of the statutes. While under the terms of the lease, other persons or organizations were allowed to use the softball fields, the Association had "priority use of the facilities during the lease period." Compare Flohr v. Pennsylvania Power & Light Co., 800 F. Supp. 1252 (E.D. Pa. 1992) (citing Garreans v. City of Omaha, 216 Neb. 487, 345 N.W.2d 309 (Neb. 1984) (campers found to be nonpaying, recreational users when payment of a fee by campers did not entitle them to a greater right to use the park facilities than that held by the general public)). Clearly, the City granted the Association "priority use" of the fields in exchange for "other good and valuable consideration" in lieu of a higher fee. As noted in footnote 2, South Dakota has granted land occupier immunity "where an entrant comes upon an occupier's land for recreational purposes without conferring any economic benefit, or consideration upon the occupier." Welter, Premises Liability, 33 S.D. L. Rev. at 79 (emphasis added). Clearly, the lease of the fields conferred an economic benefit or consideration upon City.

Contrary to the court's holding, the legislative goal of the statute is clearly articulated in the statute as it relates to the facts of this case: If [the City] will open its land to recreational use by the public without any payment of consideration to it, it will not be liable in damages for injuries occurring to any member of the public while on the land; however, if [the City] requires that any consideration be paid to it for such recreational use by any member of the public, as to that paying member, [the City] will be liable under the common law principles governing landowner and licensee.

Robbins, 557 A.2d at 619. Therefore, the circuit court's Conclusion of "no charge" was in error.

2. Whether the roster signed by Johnson was sufficient to release Association and City from liability.

The circuit court granted Defendants' Motion for Summary Judgment in part because Johnson "executed a release of the Defendants from liability for injuries which she sustained as a result of participation in the softball activity." A release is contractual in nature and governed by the law of contracts. Erck v. Bachand, 69 S.D. 330, 335, 10 N.W.2d 518, 520 (1943) (citations omitted) . The essential elements to a contract are: (1) Parties capable of contracting; (2) Their consent; (3) A lawful object; and (4) Sufficient cause or consideration. SDCL 53-1-2. Johnson argues on appeal that summary judgment was improperly granted because there was a material issue of fact regarding her consent. According to Johnson, at the time she signed the paper containing the "release", she thought she was signing a "roster," and therefore, there was no consent to release.

Our standard of review of summary judgment is settled.

In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.

Lamp v. First Nat'l Bank, 496 N.W.2d 581, 583 (1993) (citing Waddell v. Dewey County Bank, 471 N.W.2d 591, 593 (S.D. 1991) (citations omitted)).

"To be valid, a release must be fairly and knowingly made." Paterek v. 6600 Ltd., 465 N.W.2d 342, 344 (Mich. Ct. App. 1990) (citations omitted). A release is not fairly made and is invalid if the nature of the instrument was misrepresented or there was other fraudulent or overreaching conduct. Id. (Citation omitted). See also Dombrowski v. City of Omer, 199 Mich. App. 705, 502 N.W. 2d 707, 709 (Mich. Ct. App. 1993).

In Paterek, the injured player claimed on appeal "that there was an issue of material fact regarding whether the nature of the document which he signed was misrepresented as a roster, as opposed to a release." 465 N.W.2d at 344. While the Michigan Court of Appeals held that there was no genuine issue of material fact and the plaintiff's claim was barred by the release, beneath the relevant release language in Paterek was the statement "I have read the above terms of this contract, understand them and agree to abide by them. I, the undersigned player, acknowledge that I have read and understand the above contract." Id.

The Court in Paterek distinguished Kropff v. City of Monroe, 128 Mich. App. 450, 340 N.W.2d 119 (Mich. Ct. App. 1983), which held that the trial court erred in granting the motion for accelerated judgment and resolving the factual dispute as to whether a release signed by the injured player was presented as a roster, not as a release. In distinguishing Kropff, the Paterek Court noted that the release in Kropff "did not contain a plain and clear statement, directly before the signature lines, stating that the player acknowledged reading and understanding the contract." 465 N.W.2d at 345 (emphasis added).

In this case, as in Kropff, the release did not contain a plain and clear statement directly before the signature lines. Rather, the release was at the bottom of the roster, beneath all of the signatures of the team members. Compare Dombrowski, 502 N.W.2d at 711 ("There might be some validity to plaintiff's argument had the document been entitled 'Rope Climb Sign-up Sheet' and contained a vague reference advising participants to read the reverse side before signing, with a clause waiving liability being printed on that reverse side in two-point type and written in such legalese that it would take a lawyer several hours to decipher.")

According to Johnson's deposition, while she acknowledges signing a roster, she did not sign what she perceived to be a waiver or release. And Ronald Jeffries, the team's coach, testified that he did not explain the release to any of the players. Rather, he told the players that this was the roster which they needed to sign before they could play. Compare Id. at 710. ("Had Tremble handed the document to plaintiff stating that it was merely a sign-up form and of no consequence, then, perhaps, rescission would be appropriate on the basis that plaintiff's signature on the release form had been induced by fraudulent misrepresentation.")

Whether Johnson was aware she was signing a release and releasing "the Defendants from liability for injuries which she sustained as a result of participation in the softball activity" is a factual question. In granting the Defendants' motion, the circuit court resolved this factual question. This was error. If a court, in ruling on a motion for summary judgment, engages in fact-finding, reversal is required. Kropff, 340 N.W.2d at 120. "Summary judgment should not be granted unless the moving party demonstrates a right to a judgment with such clarity as to leave no room for controversy." Silingo, 458 N.W.2d at 383 (citation omitted) . Controversy exists as to whether Johnson consented to the release. Therefore, a genuine issue of material fact exists. We reverse and remand for trial.

AMUNDSON, Justice, concurs.

WUEST, Justice, concurs in result and concurs specially.

MILLER, Chief Justice, and, HENDERSON, Justice, Dissent.

WUEST, Justice (concurring in result and Concurring specially).

While I concur in the result in this case, I write specially to address certain points that merit the attention of this court.

1. Construction of Anticipatory or Pre-injury Releases

A review of the cases that involve releases in conjunction with a recreational activity reveals two evident trends:

First, the more inherently dangerous or risky the recreational activity, the more likely that an anticipatory release will be held valid. That is, individuals who engage in activities like mountain climbing, race car driving, parachute jumping, and the like, are more likely to be held to have an understanding of the risky nature of their chosen activity. Lee v. Beauchene, 337 N.W.2d 827 (S.D. 1983); Jones v. Dressel, 623 P.2d 370 (Colo. 1981); Gross v. Sweet, 49 N.Y.2d 102, 400 N.E.2d 306, 424 N.Y.S.2d 365 (N.Y. 1979).

Second, anticipatory, pre-injury releases are much more likely to be deemed valid and enforceable when they are written on a separate document --that is, not imbedded in an application, rental agreement, or sign-up sheet. A good example is found in Baker v. City of Seattle, 79 Wash. 2d 198, 484 P.2d 405 (Wash. 1971). When Baker rented a golf cart at a city golf course, the rental agreement contained a clause stating in part that the "Lessor shall not be liable for any damages whatsoever arising from injuries to the person and/or property damage or loss from whatever cause arising." 484 P.2d at 406. The brakes on the cart failed, the cart overturned, and Baker was injured. Especially because the disclaimer was in the middle of the agreement and was not conspicuous, the court held the disclaimer was invalid. Id. at 406-07. See also Rosen v. LTV Recreational Development, Inc., 569 F.2d 1117 (10th Cir. 1978). Rosen was injured in a ski area; his season pass contained pre-injury release language, wherein the purchaser of the pass accepted the "existence of such dangers . . . including the chance of injury." 569 F.2d at 1122. The court stated that, "Because of its one-sidedness, [such pre-injury releases must] be interpreted strictly in considering the rights of the party who has prepared it." Id. The court held that the agreement fell short of saying that the "ski area may be negligent toward the signer free of liability." Id. at 1123.

General Discussion of pre-injury releases and exculpatory clauses is found in 1 STUART M. SPEISER ET AL., THE AMERICAN LAW OF TORTS § 5.39 at 1084-98 (1983). This treatise states in part:

As to construction of anticipatory or pre-injury release clauses, it is a favored rule that the law's reluctance to enforce exculpatory provisions of this nature has resulted in the development of an exacting standard by which courts measure their validity. So, it has been repeatedly emphasized that unless the intention of the parties is expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for his own negligent acts. Not only does this stringent standard require that the drafter of such an agreement make its terms unambiguous, but it mandates that the terms be understandable as well. . . . Of course, this does not imply that only simple or monosyllabic language can be used in such clauses. Rather, what the law demands is that such provisions be clear and coherent. In applying this rule of strict construction, particularly where the court is able to ascertain any ambiguity, the one-sidedness or adhesion nature of such contracts is often emphasized.

1. If the Recreational Use Statutes apply, the release was not needed and it would not be necessary to reach Issue 2. Likewise, it would not have been necessary for the City to require the Association to purchase and maintain liability insurance.

2. Through the Recreational Use Statutes, South Dakota has

legislatively granted additional land occupier immunity in situations where an entrant comes upon an occupier's land for recreational purposes without conferring any economic benefit, or consideration upon the occupier. Such entrants are substantively treated as "trespassers," and liability attaches only to the land occupier's gross negligence or wilful or wanton misconduct. Nothing in the statutes limits any liability which would otherwise exist for injuries suffered where the occupier charges the entrant a fee. The category of "licensee" is essentially eliminated in these circumstances.

Mark J. Welter,Premises Liability: A Proposal to Abrogate the Status Distinctions of "Trespasser," "Licensee" and "Invitee" as Determinative of a Land Occupier's Duty of Care Owed to an Entrant, 33 S.D. L. Rev. 66, 79 (1988).

3. The issue of whether the Recreational Use Statutes provided the defendant with immunity was not considered in Deuchar v. Foland Ranch, Inc., 410 N.W.2d 177 (S.D. 1987), because the circuit court never reached the issue and therefore it was not before this court on appeal. Id. at 182.


* The language of the Dobratz release stated in pertinent part:

I, hereby release, and agree to hold harmless the Webfooter Water Shows Inc., the promoters, the owners and lessees of the premises, the participants, and the officers, directors, officials, representatives, agents and employees of all of them, of any and from all liability, loss, claims, and demands that may accrue from any loss, damage or injury (including death) to my person or property, in any way resulting from, or arising in connection with this event, and whether arising while engaged in competition or in practice or preparation therefore, or while upon, entering or department from said premises, from any cause whatsoever. I know the risk and danger to myself and property while upon said premises or while participating or assisting in this event, so voluntarily and in reliance, upon my own judgment and ability, and I thereby assume all risk for loss, damage or injury (including death) to myself and my property from any cause whatsoever.

468 N.W.2d at 657 n.1.

* See, e.g., Gore v. Tri-County Raceway, Inc., 407 F. Supp. 489 (M.D.Ala. 1974); Valley Nat. Bk. v. Stock Car Auto Racing, 153 Ariz. 374, 736 P.2d 1186 (Ariz.App. 1987); Coates v. Newhall Land & Farming, Inc., 191 Cal. App. 3d 1, 236 Cal.Rptr. 181 (1987); Hulsey v. Elsinore Parachute Center, 168 Cal. App. 3d 333, 214 Cal.Rptr. 194 (1985); Doster v. C.V. Nalley, Inc., 95 Ga. App. 862, 99 S.E.2d 432 (Ga. 1957); Lee v. Sun Valley Co., 107 Idaho 976, 695 P.2d 361 (Idaho 1984); Lohman v. Morris, 146 Ill. App. 3d 457, 497 N.E.2d 143, 100 Ill. Dec. 263 (Ill.App. 1986); Winterstein v. Wilcom, 16 Md. App. 130, 293 A.2d 821 (Md.App. 1972); Lee v. Allied Sports Associates, Inc., 349 Mass. 544, 209 N.E.2d 329 (Mass. 1965); Malecha v. St. Croix Valley Skydiving Club, 392 N.W.2d 727 (Minn.App. 1986); Barnes v. New Hampshire Karting Ass'n, Inc., 128 N.H. 102, 509 A.2d 151 (N.H. 1986); Theroux v. Kedenburg Racing Association, 50 Misc. 2d 97, 269 N.Y.S.2d 789 (1965), aff'd, 28 A.D.2d 960, 282 N.Y.S.2d 930 (1967); Cain v. Cleveland Parachute Training Center, 9 Ohio App. 3d 27, 457 N.E.2d 1185 (Ohio App. 1983); Huckaby v. Confederate Motor Speedway, Inc., 276 S.C. 629, 281 S.E.2d 223 (S.C. 1981); Corpus Christi Speedway v. Morton, 279 S.W.2d 903 (Tex.App. 1955); Conradt v. Four Star Promotions, Inc., 45 Wash. App. 847, 728 P.2d 617 (Wash.App. 1986).

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