By Jim Moss
Age of majority is 19 in Nebraska. Student athlete was 18 when he, and his mother signed release. Release was used to stop lawsuit over injuries received as a student athlete.
Sinu v. Concordia Univ., 313 Neb. 218 (Neb. 2023)
State: Nebraska, Supreme Court of Nebraska
Plaintiff: Konrad Sinu and his mother
Defendant: Concordia University is a private institution in Nebraska
Plaintiff Claims: negligence
Defendant Defenses: Release
Holding: For the Defendant
Nebraska Supreme Court upholds release signed by a parent to block the claims of a minor injured as a student athlete.
Concordia University is a private institution in Nebraska. It recruited Konrad Sinu (the student) to play for the university’s intercollegiate men’s soccer team. The university provided the student with soccer and academic scholarships. Before the student moved to Nebraska from his home in England, he signed an “Assumption of Risk and Waiver of Liability Release.” Because the student was 18 years old, his mother also signed the release.
Roughly 5 months after arriving at the university, the student and his soccer teammates engaged in a mandatory strength and conditioning workout at the university’s Walz Human Performance Complex (the Walz). The workout involved circuit training in which the teammates moved from one exercise station to another in small groups. One station consisted of an exercise referred to as the “face pull.” In the exercise, an elastic resistance band was secured to a squat rack post and was pulled toward the user’s face. During the course of the workout, teammates altered the band’s placement from how a university employee originally set it. When the student approached the squat rack, he observed the resistance band resting on a “I-hook” of the squat rack. As the student performed the exercise, the resistance band slid off the hook and caused injury to his eyes.
The student and his mother sued the university, setting forth a cause of action for negligence. The university asserted numerous affirmative defenses in its responsive pleading. One defense alleged that the claim was barred by the release signed by the student and his mother. Another defense alleged that the claim was barred by the doctrine of assumption of risk.
Analysis: making sense of the law based on these facts.
The Nebraska Supreme Court looked at two issues in this decision. The second issue is whether or not the plaintiff should have been given the opportunity to amend their complaint to include claims that might have not been covered by the release. That issue will not be discussed because it is procedural in nature.
The first issue is whether or not a release signed by a minor and his mother can be used in Nebraska to stop claims for injuries received by the minor.
Nebraska has a simple test to determine the validity of a release initially: the release must be valid and enforceable.
Under Nebraska law, releases are exculpatory clauses, as in most other states.
The release is a type of exculpatory clause. An exculpatory clause is “[a] contractual provision relieving a party from liability resulting from a negligent or wrongful act.” Such clauses purport to deny an injured party the right to recover damages from the very person or entity which negligently caused the injury.
The court then compared exculpatory clauses to indemnify clauses since both were used in this release:
An indemnity clause is “[a] contractual provision in which one party agrees to answer for any specified or unspecified liability or harm that the other party might incur.” Although an indemnity clause may ultimately have the same effect as an exculpatory clause, they differ. “An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing the injury, while an indemnification clause attempts to shift the responsibility for the payment of damages to someone other than the negligent party . . .” In some situations, the indemnity clause shifts such responsibility back to the injured party, thereby yielding the same result as an exculpatory clause. But “an indemnity provision generally does not apply to claims between the parties to an agreement . . . ‘Rather, [the provision] obligates the indemnitor to protect the indemnitee against claims brought by persons not a party to the provision.'”
The court then explained additional requirements for a release to be valid:
Exculpatory clauses are enforceable only where and to the extent that the intention to be relieved was made clear and unequivocal in the contract, and the wording must be so clear and understandable that an ordinary and knowledgeable party will know what he [or she] is contracting away.
This is sort of a step back to the plain English rule, in which contracts for consumers must be understood by the consumer. The persons signing a release are not consumers under the legal meaning of the term, but they are not sophisticated business people represented by attorneys either. Consequently, many courts require the language of the release to be understandable and clearly state the intentions of the release. In other words, no more small print hidden on the paperwork.
Next, the court looked at the language in the release. This release did not use the magic term “negligence” which is required in many states; however, the court found the language explained the issues and was easy to understand:
The provision must be looked at as a whole and given a reasonable construction. If there is no specific reference to liability for negligence, it must otherwise clearly appear from the language used or from a determination that no other meaning could be ascribed to the contract such that the court is firmly convinced that such interpretation reflects the intention of the parties. Here, the intended effect was clear.
The court went through the release section by section pointing out the important points that made the release a valid and enforceable agreement:
Start with the language of the release. In large, boldface type at the top of the page appears the title, “Assumption of Risk and Waiver of Liability Release.” The document then states that “[i]n consideration of . . . being provided access and the opportunity to use the Walz” and in recognition of the “risks inherent in such physical activity, I do hereby . . . release . . . the [u\niversity . . . from and against any and all claims, demands, injuries, actions or causes of action, for . . . personal injury . . . which may result from my presence at or participation in any such [u]niversity activities.” (Emphasis supplied.)
Although the document does not mention negligence, it is apparent that releasing the university from its own negligence was the document’s intended consequence. As is evident from the definition of an exculpatory clause set forth above, relieving a party from its own negligence is the very purpose of an exculpatory clause. The language of the release clearly demonstrates an intent to eliminate the university’s liability, particularly when protecting the university from negligence claims is the only reasonable construction.
In some cases dealing with indemnity clauses, we have found broad language to not be clear or unequivocal. In one case, we determined that a reference to ‘”any and all claims for damage and liability for injury to or death of persons'” was not sufficient to impose liability for an indemnitee’s negligence. In another case, we stated that language that an indemnitor would protect an indemnitee against ‘”all risks and from any claims that may arise out of or pertain to the performance of such work,'” did not constitute express language covering the indemnitee’s own negligence nor did it constitute clear and unequivocal language that it was the parties’ intention to cover the indemnitee’s own negligence.
The plaintiff’s argument was that the release was ambiguous. Once more, the court looked at the issue of the release not containing the magic term negligence and again found the language of the release was clear enough, that the term negligence was not needed. However, since the court brought that issue up three times in one decision, moving forward it might be important to include the word in releases in Nebraska:
For the same reason expressed above, we reject the student and his mother’s claim that the release did not unambiguously notify them that they were releasing the university from its own negligence. While the release’s language may not have explicitly used the word “negligence” or referenced the university’s conduct, it was not ambiguous.
An ambiguity in a release is a word, phrase or provision that may reasonably be interpreted in more than one way:
An exculpatory clause, like a contract, is ambiguous when a word, phrase, or provision in the contract has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings. A contract which is written in clear and unambiguous language is not subject to interpretation or construction; rather, the intent of the parties must be determined from the contents of the contract, and the contract must be enforced according to its terms.
The plaintiffs then argued the release was unconscionable. Here the court found the release was not in several different ways:
Even if clear and unambiguous, an exculpatory clause will be unenforceable if it is unconscionable or void as against public policy. The student and his mother advance several reasons why they believe the release was unconscionable and void as against public policy. Those reasons lack merit.
To begin, courts are disinclined to find a contractual agreement void as against public policy. Courts should be cautious in holding contracts void on the ground that the contract is contrary to public policy; to be void as against public policy, the contract should be quite clearly repugnant to the public conscience.
There is a general reluctance to hold a release or any contract unconscionable. The court thereafter applied a two-prong test to the release to determine if it was unconscionable:
We have stated that an essential fact in determining unconscionability is the disparity in respective bargaining positions of parties to a contract. Other jurisdictions have adopted a two-prong test for determining whether exculpatory clauses are invalid as contrary to public policy: (1) whether there was a disparity of bargaining power between the parties and (2) the types of services being offered or provided.
The court found there was no disparity in bargaining power because the student athlete was free to go to other schools to play soccer. The second test reviews the types of services to be offered in exchange for the release but a necessity is something that you really can’t live without:
Further, the services offered by the university were not a public or essential service. The university is a private school, and the release related to a recreational activity. “Exculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy. Indeed, plaintiff’s ordinary negligence claims may generally be barred where she or he voluntarily executes exculpatory contract in order to participate in recreational or nonessential activities.”
Recreational activities in Nebraska are not necessities. This has been the holding when any court looks at the issues of recreational activities. Although most readers would argue that without recreation, life is pretty dull, it is still not an essential component for life, yet, according to the courts.
What the court never examined was the age of the signor and who or how the student athlete was barred by the release. In Nebraska, you are not an adult until you reach the age of 19. When the student athlete signed the release, he was only 18 years old. See
The age that minors become adults for the ages of the states when a minor becomes an adult.
In every state, a minor cannot sign a release, and unless there is an aberration in the law in Nebraska, I am not familiar with, if you are a minor, someone under the age of consent, then you cannot sign a contract.
The student’s mother was over the age of 19, although she never brought out in the release. Thus, the release was deemed valid, effectively stopping her and her sons claims. Consequently, Nebraska joins the list of states where a parent can sign away a minor’s right to sue. See States that allow a parent to sign away a minor’s right to sue for the other states and case law that allow a parent to sign away a minor’s right to sue.
So Now What?
The good news is Nebraska joins the short list of states that allow a parent to sign away a minor’s right to sue.
Looking at this case as an educational issue, there are several points to review when writing a release under Nebraska law. The most important is to include the magic word “negligence” in the release as the legal right the signor of the release is giving up.
Other articles reviewing Nebraska Law see:
|Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us|
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.