Hillerson v. Bismarck Public Schools

2013 ND 193, 840 N.W.2d 65, 2013 N.D. LEXIS 220, 2013 WL 6171117

• Court: North Dakota Supreme Court
• Decided: October 22, 2013
• Docket: 20130101
• Status: Published

Opinions

VANDE WALLE, Chief Justice.

[¶ 1] Shealeen Hillerson, as “best friend” to T.D., a minor child, and T.D. appealed from a summary judgment dismissing their negligence lawsuit against the Missouri Valley Family YMCA for injuries T.D. suffered in a near-drowning accident while participating in a YMCA summer program. Because we conclude that the waiver of liability signed by T.D.’s mother is ambiguous, a question of fact exists as to the intent of the parties. We reverse the summary judgment and remand for further proceedings.

I

[¶ 2] In March 2008, Kristina and Brandon Dickerson enrolled their minor daughter T.D. in a summer Extended School Program (“ESP”). The ESP was run in conjunction by the YMCA, Bismarck Public Schools, and the Bismarck Parks and Recreation Department. The ESP was funded by a federal grant obtained by the Bismarck Public School District and the YMCA. The program was designed, in part, to provide summer educational opportunities “in a stimulating, safe, drug-free, supervised environment to a large number of at-risk students.” Before enrolling her daughter in the program, T.D.’s mother filled out a YMCA registration form that contained two release of liability provisions. T.D.’s mother signed the release of liability provisions. T.D. did not sign the release. The waiver provisions provided:

I understand that the Bismarck ESP does not carry medical, dental or eye glass insurance and that I will be responsible for any medical charges my child may incur. I hereby release the Missouri Valley Family YMCA and Bismarck Public Schools from any liability.

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My child has my permission to attend/participate in all field trips unless otherwise stated by me in writing directly to the Site Coordinator. I understand that the Bismarck ESP does not carry medical, dental or eye glass insurance and that I will be responsible for any medical charges my child may incur. I hereby release the Missouri Valley Family YMCA and Bismarck Public Schools from any liability.

At the bottom of the YMCA registration form, T.D.’s mother also signed a certification clause stating, “I certify that the above information is true to the best of my knowledge and I understand the Missouri Valley Family YMCA is not responsible for accidents.” In May 2008, T.D. and her older sister, who was also a minor child at the time of the incident, were accepted into the program. T.D. and her sister each received a full scholarship for the program for the entire summer.

[¶ 3] On June 13, 2008, T.D., who was six years old at the time of the incident, went to the Mandan Community Center swimming pool with approximately forty-two other children and seven adults as part of the program. The YMCA states in its brief that the number of staff members exceeded the state and county’s child-to-adult ratio requirements. While at the pool, T.D. was found unresponsive and submerged in the three-foot-deep end of the water. It is unclear how T.D. entered the water. As a result of her near-drowning and oxygen deprivation, T.D. suffered debilitating injuries including hypoxic brain injury and hypoxic ischemic encephalopathy.

[¶ 4] In March 2011, Hillerson, as best friend to T.D., and T.D. filed suit against the Bismarck Public Schools and Mandan Parks and Recreation, alleging the entities were negligent “by failing to provide appropriate supervision, failing to provide safe facilities and equipment, failing to warn of the dangers associated with a swimming pool, failure to properly train its employees and in such other ways as will be established at the time of trial.” T.D. later amended her complaint to include the YMCA as a defendant. Bismarck Public Schools and Mandan Parks and Recreation settled the claims against them and are no longer parties to the suit.

[¶ 5] The YMCA moved for summary judgment, arguing the release of liability signed by T.D.’s mother relieved the YMCA of any liability for T.D.’s injuries. In February 2013, the district court granted the YMCA’s motion for summary judgment, concluding the release of liability provisions exonerated the YMCA from liability for the injuries T.D. suffered while in the program. The district court found the release in the instant case was “nearly identical” to the release of liability language found in Kondrad ex rel. McPhail v. Bismarck Park Dist., 2003 ND 4, 655 N.W.2d 411.

II

[¶ 6] On appeal, T.D. asserts the district court erred in granting summary judgment in favor of the YMCA because the release of liability provisions did not exonerate the YMCA from liability for its alleged negligence.

[¶ 7] This Court’s standard of review for summary judgment is well-established:

Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record.

Missouri Breaks, LLC v. Burns, 2010 ND 221, ¶ 8, 791 N.W.2d 33.

[¶ 8] The party opposing summary judgment cannot “simply rely upon the pleadings or upon unsupported, eonclu-sory allegations.” Spratt v. MDU Res. Grp., Inc., 2011 ND 94, ¶ 7, 797 N.W.2d 328. The nonmoving party “must set forth specific facts by presenting competent, admissible evidence, whether by affidavit or by directing the court to relevant evidence in the record, demonstrating a genuine issue of material fact.” Id. Additionally, we have stated, the onus is on the party opposing summary judgment to draw the court’s attention to relevant evidence in the record; “the court has no duty to scour the record for evidence that would preclude summary judgment.” Tarnavsky v. Rankin, 2009 ND 149, ¶ 8, 771 N.W.2d 578.

III

[¶ 9] On appeal, T.D. contends the language of the waiver signed by her mother did not release the tort claim of the child. The YMCA argues T.D.’s contentions are unsupported statements that are not part of the record. We agree with the YMCA. Our review of the record reveals that T.D. failed to adequately allege the waiver did not apply to her as a child, thus, the argument is not proper on appeal. Issues not raised in the trial court cannot be raised for the first time on appeal. Alerus Fin., N.A. v. Lamb, 2003 ND 158, ¶ 17, 670 N.W.2d 351. “Evidence which does not appear in the record of the [district] court proceedings cannot be considered by this Court on appeal.” Arndt v. Maki, 2012 ND 55, ¶ 15, 813 N.W.2d 564.

[¶ 10] At the summary judgment proceeding, the only semblance of an argument that the mother’s waiver did not apply to T.D.’s potential cause of action is found in the following statements made by her attorney at the hearing: “[Kondrad is] more specific. It deals with physical injuries. It talks about assumption of risk. It talks about the waiver of claims and not only waives them for the mother, it waives them for the child, and it refers to program and just civil liabilities.” The argument was not expounded further. Because T.D. failed to allege at the trial court level that the release signed by her mother did not waive T.D.’s own potential cause of action, we do not consider whether a pre-injury waiver of liability signed by a parent affects the potential claims of the child.

IV

[¶11] T.D. additionally argues the YMCA was precluded under N.D.C.C. § 9-08-02 from exonerating itself from willful acts. Under N.D.C.C. § 9-08-02, “contracts which have for their object, directly or indirectly, the exempting of anyone from responsibility for that person’s own fraud or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.” “Generally, the law does not favor contracts exonerating parties from liability for their conduct.” Kondrad, 2003 ND 4, ¶ 6, 655 N.W.2d 411; see also Reed v. Univ. of North Dakota, 1999 ND 25, ¶ 22, 589 N.W.2d 880. However, parties to an otherwise lawful contract are still bound by the clear and unambiguous language “evidencing an intent to extinguish liability, even though exculpatory clauses are construed against the benefitted party.” Kondrad, at ¶ 6.

[¶ 12] The YMCA again contends T.D. failed to allege the YMCA acted willfully, intentionally, or grossly negligent, and thus, her argument is improper here. In T.D.’s original complaint and amended complaint, she only alleged the YMCA was “negligent, among other things, by failing to provide appropriate supervision, failing to provide safe facilities and equipment, failing to warn of the dangers associated with a swimming pool, failure to properly train its employees and in such other ways as will be established at the time of trial.” The complaint further states that “as a direct and proximate cause” of the YMCA’s negligence, T.D. “sustained and will in the future sustain medical expenses for her care, treatment and other economic losses.” The complaint is devoid of any language pertaining to intentional or willful conduct on the part of the YMCA.

[¶ 13] At the summary judgment hearing, T.D.’s attorney, referring to Kondrad, stated, “you can argue invalidity because of the liability from intentional or willful acts ... this case hasn’t gone to trial yet and I would make a motion then at this point that I would be allowed to amend my complaint.” The district court instructed that if T.D. wanted to make the motion, she was to put it in writing. The complaint was never amended to include intentional and willful acts or gross negligence.

[¶ 14] The YMCA argues that in cases that have actually asserted intentional and willful acts, those theories have been “stated distinctly from other claims for relief.” In support of its contention, the YMCA points to Kautzman v. McDonald, 2001 ND 20, ¶ 8, 621 N.W.2d 871, in which this Court quoted specific allegations of the plaintiffs complaint that the defendants committed “intentional, wrongful, negligent, grossly negligent, and/or wilful acts.” Our previous case law addressing pre-inju-ry releases of liability support a general rule requiring specific pleading of intentional or willful conduct if a plaintiff is arguing the waiver violates N.D.C.C. § 9-08-02. For example, in Reed, this Court explained, “Reed’s claims against NDAD are based on negligence, and he has not argued the release is invalid because it purports to exonerate NDAD from liability for intentional or willful acts.” Reed, 1999 ND 25, ¶ 22 n. 4, 589 N.W.2d 880. Similarly, in Kondrad, this Court noted that the plaintiffs claim was not based on intentional or willful acts. Kondrad, 2003 ND 4, ¶ 8 n. 1, 655 N.W.2d 411. These cases should have put T.D. on notice to specifically plead intentional or willful acts in her complaint if that was what she was alleging.

[¶ 15] We conclude that T.D.’s complaint has only pled a negligence theory and not intentional or willful acts. Therefore, because the issue was not raised in the trial court, the issue of gross negligence, or intentional and willful acts, will not be considered here.

V

[¶ 16] T.D. contends that the release is ambiguous. The YMCA argues T.D. failed to raise the issue of ambiguity at the trial court level, and as a result, the issue cannot be raised for the first time on appeal here. While we are cognizant of the perfunctory nature with which the argument was haphazardly pled, both at the trial court level and on appeal, we construe T.D.’s argument to have raised the issue of ambiguity. Although she does not specifically articulate the waiver is ambiguous, in her summary judgment and appellate brief, T.D. does distinguish the facts and language of the release in Kondrad from the facts and language here. T.D. specifically argues in her appellate brief that the language in the release “is no where near as comprehensive and specific as the release” in Kondrad. We determine the issue of ambiguity was properly preserved.

[¶ 17] Where reasonable differences of opinion exist as to the terms of a contract, the contract is deemed ambiguous, and summary judgment is not appropriate. See Golden v. SM Energy Co., 2013 ND 17, ¶ 13, 826 N.W.2d 610; Hunt v. Banner Health Sys., 2006 ND 174, ¶ 18, 720 N.W.2d 49 (holding summary judgment was improper because ambiguities in an employee handbook created a question of material fact whether the handbook was intended by the parties to establish required terms of the employment contract).

[¶ 18] Because we conclude T.D. sufficiently argued the release was ambiguous, the issue here turns on the language of the release. When a contract is reduced to writing, the intent of the parties is to be ascertained from the writing alone, if possible. N.D.C.C. § 9-07-04. This Court also construes contracts “to give effect to the parties’ intent, which, if possible, must be ascertained by giving meaning to each provision of the contract.” Reed, 1999 ND 25, ¶ 25, 589 N.W.2d 880. Whether a written contract is ambiguous is a question of law, and this Court will “independently examine and construe the contract to determine if the trial court erred in its interpretation of it.” Kondrad, 2003 ND 4, ¶ 6, 655 N.W.2d 411. “[A] contract is ambiguous when reasonable arguments can be made for different positions on its meaning.” Moen v. Meidinger, 547 N.W.2d 544, 547 (N.D.1996). This Court has also stated:

“A determination of ambiguity is but the starting point in the search for the parties’ ambiguously expressed intentions,” since an ambiguity creates “questions of fact to be determined with the aid of extrinsic evidence.” Bohn v. Johnson, 371 N.W.2d 781, 788 (N.D.1985). When the terms of a contract are ambiguous, “extrinsic evidence of the parties’ intent may be considered and the terms of the contract and the parties’ intent become questions of fact.” Wachter Development, L.L.C. v. Gomke, 544 N.W.2d 127, 131 (N.D.1996). As National Bank of Harvey [v. Int'l Harvester Co., 421 N.W.2d 799, 803 (N.D.1988) ], explained, the resolution of an ambiguity with extrinsic evidence requires the trier of fact to make a finding of fact.

Bendish v. Castillo, 2012 ND 30, ¶ 16, 812 N.W.2d 398 (quoting Moen, 547 N.W.2d 544, 547 (N.D.1996)).

[¶ 19] T.D. specifically argues the district court erred in its reliance on Kondrad in granting summary judgment because the release in the instant case does not speak to the issue of damages or losses. In Kondrad, a minor child and his mother brought a negligence action against the Bismarck Park District for injuries the child sustained from a bicycle accident that occurred while he was participating in an after school program run by the Park District. Kondrad 2003 ND 4, ¶ 1, 655 N.W.2d 411. In order for her child to participate in the after school program, the mother signed a release of liability. The waiver contained the following release language:

I recognize and acknowledge that there are certain risks of physical injury to participant in this program and I agree to assume the full risk of any such injuries, damages or loss regardless of severity which I or my child/ward may sustain as a result of participating in any activities associated with this program. I waive and relinquish all claims that I, my insurer, or my child/ward may have against the Park District and its officers, servants, and employees from any and all claims from injuries, damages or loss which I or my child/ward may have or which may accrue to me or my child/ ward on account of my participation of my child/ward in this program.

Id. at ¶ 5. This Court held that the waiver and release signed by the child’s mother was clear and unambiguous and exonerated the Park District for its alleged negligence. Id. at ¶ 7. Although the injury occurred from an activity (riding a bike) that was not affiliated with the after school program, the waiver and release language was broad enough to exculpate the Park District of all injuries incurred by the child “on account of his participation in the program.” Id. at ¶ 7. This Court also noted the plaintiffs claim was not based on intentional or willful acts, thus it did not address whether the waiver or liability would be effective against intentional or willful acts. Id. at ¶ 8 n. 1.

[¶ 20] We conclude the release presently before the Court is distinguishable from the release of liability at issue in Kondrad. In Kondrad, we held that the registration form signed by the mother contained separate and distinct assumption of risk and waiver clauses. Id. at ¶ 7. The unambiguous language of the release provided that the mother agreed to assume the full risk of her child’s injuries and damages arising from his participation in the program. Id. In addition to assuming the risk, we concluded the mother also unambiguously relinquished all claims for injuries and damages in order to allow her child to participate. Id.

[¶ 21] Here, looking at the release of liability provisions as a whole, we conclude reasonable differences of opinion and interpretations exist as to its meaning. Paraphrasing the first clause, the release essentially provides that the YMCA does not carry medical insurance and that the parent or guardian signing the release form “will be responsible for any medical charges” the child may incur. The second sentence then seeks to release the YMCA from “any liability.” Reading the two sentences together, it is equivocal whether the “liability” referenced in the second sentence simply refers to the “medical charges” introduced in the first sentence, or whether it goes beyond medical charges to include damages. The use of the word “any” before the word “liability” may indicate the drafters intended to extend the scope of the waiver; however, we conclude reasonable differences of opinion arise as to whether the parameters of “any liability” extends to tort damages in this context.

[¶ 22] The second release clause provides, “[m]y child has my permission to attend/participate in all field trips unless otherwise stated by me in writing directly to the Site Coordinator.” The clause then contains the same nebulous sentences as the first clause. Whereas the Kondrad release language specifically stated liability would be waived for “injuries, damages or loss,” in the case at bar, it is reasonably debatable whether the release simply refers to medical expenses or alludes to something more. Unlike Kondrad, the face of the release here does not mention damages, torts, injuries, losses, or similar types of terms. Moreover, the clause could arguably be interpreted to serve as a medical emergency release allowing the YMCA to make prompt medical decisions for the child, in the event of an emergency, while the parent is temporarily unavailable. The third clause contained a certification statement and provided, the “YMCA is not responsible for accidents.” In light of the language in Kondrad, which waived liability for “injuries, damages or loss,” we are uncertain whether “accidents” refers to torts, medical expenses, or something more.

[¶ 23] Reading the three clauses together as a whole, the release is not clear as to what it is purporting to release. A reasonable interpretation may indicate the YMCA exculpated itself from medical expenses; however, it is unclear whether the release includes damages from torts, specifically negligence. The release is deficient of the specific and comprehensive language that was exhibited in Kondrad. Because the ambiguous waiver creates a question of fact to be determined by the aid of extrinsic evidence, summary judgment was inappropriate. We therefore hold that the release of liability in the instant case is ambiguous, and that the district court erred in granting summary judgment in favor of the YMCA.

VI

[¶ 24] We reverse the district court’s summary judgment and remand for further proceedings consistent with this opinion.

[¶ 25] DALE V. SANDSTROM and CAROL RONNING KAPSNER, JJ., concur.