The Supreme Court of Nebraska has affirmed the ruling of a lower court, finding in favor of Concordia University, which had been sued by a college athlete, who suffered an injury in the University’s weight room. In so ruling, the high court agreed that the waiver the student-athlete and his mother signed “was valid and enforceable and relieved the [U]niversity of liability for its ordinary negligence.”
Concordia, a private institution in Nebraska, recruited Konrad Sinu (the student-athlete) to play for the University’s intercollegiate men’s soccer team. The University provided the student-athlete with both athletic and academic scholarships. Before the student-athlete moved to Nebraska from his home in England, he signed an “Assumption of Risk and Waiver of Liability Release.” Since the student-athlete was 18 years old at the time, his mother also signed the release.
Roughly five months after arriving at the University, the student-athlete 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-athlete approached the squat rack, he observed the resistance band resting on a “J-hook” of the squat rack. As he performed the face pull exercise, the resistance band slid off the hook and caused injury to his eyes.
Thereafter, the student-athlete 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-athlete and his mother. Another defense alleged that the claim was barred by the doctrine of assumption of risk. Some four months prior to the discovery deadline, the University moved for summary judgment.
Approximately two months later and prior to the hearing on the University’s motion, the student-athlete and his mother moved for leave to file an amended complaint. They hoped to add allegations that the University’s willful and wanton or grossly negligent actions caused the student’s injuries. But the district court denied the motion to amend, finding an amendment would be “futile.”
In considering the defendant’s motion for summary judgment, the district court rejected the plaintiff’s arguments that “the release was unconscionable, that it did not release the [U]niversity from liability for its own negligence, and that the release did not amount to an assumption of risk.”
On appeal, the plaintiffs argued that the district court “erred in (1) granting summary judgment in the [U]niversity’s favor when genuine disputes remain as to material facts and the ultimate inferences that a jury may draw from those facts and (2) denying their motion for leave to file an amended complaint when the proposed amended complaint stated a claim for which relief could be granted.”
Before rendering judgment, the Supreme Court of Nebraska considered the “language of the release” and discussed the exculpatory and indemnity clauses. In relevant part, the Court noted the following:
“The entire release appeared on one side of a single page. The title, ‘Assumption of Risk and Waiver of Liability Release, was displayed in large, boldface type. It then stated:
PLEASE READ THE FOLLOWING CAREFULLY. If you have any questions or concerns, please visit with an attorney before signing this document. This release must be signed before participation in activities at [the University] is allowed.” The release went on to explain the various rights and risks the student-athlete would be agreeing to upon signing the document. In addition, the release indicated, “If 18 years of age or younger, signature of parent/guardian is also required.”
In its analysis, the Court noted that the release contained both exculpatory and indemnity clauses.
“Both exculpatory and indemnity clauses must make clear the effect of the agreement,” wrote the Court. “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 (the right to sue). Similarly, an agreement which purports to indemnify the party who prepared it from liability for that party’s own negligence . . . must be clear, explicit, and comprehensible in each of its essential details and must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement. With this understanding in place, we turn to the student and his mother’s attacks on the release.”
The Court continued, “The student and his mother argue that the release did not contain express or clear and unequivocal language that the parties intended to release the [U]niversity from its own negligence. They are correct that the release does not use words such as ‘negligence’ or ‘fault.’ But that does not end the inquiry.”
The Court further noted that while “there is no specific reference to liability for negligence, … the intended effect was clear. … In large, boldface type at the top of the page appears the title, ‘Assumption of Risk and Waiver of Liability Release.’”
The Court added that “although the document does not mention negligence, it is apparent that releasing the [U]niversity 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 [U]niversity’s liability, particularly when protecting the [U]niversity from negligence claims is the only reasonable construction.”
Upon review, the Court found that “an obvious purpose of the release was to exempt the [U]niversity from its own negligence,” and there was “no ambiguity.”
Turning to whether the exculpatory clause is unenforceable because as the student-athlete argued it “is unconscionable or void as against public policy,” the Court found ultimately their argument without “merit.”
“To begin, courts are disinclined to find a contractual agreement void as against public policy,” it wrote. “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. Stated differently, the power of courts to invalidate contracts for being in contravention of public policy is a very delicate and undefined power which should be exercised only in cases free from doubt.”
Central to the Court’s ruling was its finding that “there was no disparity in bargaining power. The student emphasizes that he was an 18-year-old minor living on a different continent and believed he had to sign the release in order to attend the [U]niversity. He highlights that the second sentence of the release stated it ‘must be signed before participation in activities at [the University] is allowed.’ But the first sentence of the release informed the student to speak with an attorney before signing the document if he had any concerns. The student had a reasonable opportunity to understand the terms of the contract. And because the student was a minor, his mother also had to agree to the terms and sign the release. The fact that the student was given the release to sign a month prior to moving to Nebraska militates against his compulsion argument. He could have gone elsewhere to play soccer and attend college.”
Because the release barred the student’s claim, the Court wrote that it “need not also address whether the student assumed the risk of his injury. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.”
The Court also agreed with the lower court’s denial of motion to amend. Central to that ruling was the fact that substantial discovery had already taken place.
“When a motion for leave to amend a pleading is filed after a motion for summary judgment but before discovery is closed, the standard for assessing the futility of the amendment turns on whether there was a sufficient opportunity for discovery,” the Court stated. “Here, there was. The student and his mother had engaged in substantial discovery to develop their case. At the time of their initial motion for leave, they had taken the depositions of six individuals. They had requested additional time to disclose expert opinions regarding the [U]niversity’s alleged negligence and had disclosed their expert witness prior to renewing their motion for leave.”
In sum, the Court concluded that “the language of the release clearly demonstrated an intent to eliminate the [U]niversity’s liability, particularly when protecting the [U]niversity from negligence claims was the only reasonable construction. Because the proposed amendments to the complaint would have been futile, the district court did not abuse its discretion in overruling the student and his mother’s motions for leave to amend. At best, the allegations would have implicated ordinary negligence.”
Sinu v. Concordia University; Supreme Court of Nebraska; No. S-21-959; 1/13/23
