Sweeney v. City of Bettendorf

762 N.W.2d 873, 2009 Iowa Sup. LEXIS 26, 2009 WL 635137

• Court: Supreme Court of Iowa
• Decided: March 13, 2009
• Docket: 07-0127
• Status: Published

Opinions

APPEL, Justice.

This case involves an appeal from a district court order granting the City of Bet-tendorf -summary judgment in a negligent supervision case. Here, an eight-year-old girl was injured by a flying baseball bat at a minor league game while on a field trip sponsored by the Bettendorf Parks and Recreation Department. The district court found that a permission slip signed by the parent of the injured girl amounted to an enforceable anticipatory release of future claims against the City. The district court in the alternative ruled that the plaintiffs failed to introduce sufficient evidence to show that the City violated a duty of care owed to the plaintiffs. For the reasons expressed below, we affirm in part, reverse in part, and remand the case to the district court.

I. Background Facts and Prior Proceedings.

Eight-year-old Tara Sweeney enjoyed baseball games. She participated in field trips to Davenport, Iowa, sponsored by the Bettendorf Parks and Recreation Department to see minor league baseball games. In the past, according to Tara, the children sat in “comfy seats” behind home plate that were protected by screening.

In 2003, Tara wanted to go to another ball game. Prior to the field trip, Tara’s mother, Cynthia Sweeney, was asked to sign what was entitled a “Permission Slip,” which the Department required of all participants. The text of the “Permission Slip” was as follows:

I hereby give permission for my child Tara M. Sweeney to attend the Betten-dorf Park Board field trip to John O’Donnell Stadium with the Playgrounds Program on Monday, June 30, 2003. I realize that the Bettendorf Park Board is not responsible or liable for any accidents or injuries that may occur while on this special occasion. Failure to sign this release as is without amendment or alteration is grounds for denial of participation.

Prior to signing the “Permission Slip,” Cynthia talked with a supervisor about the trip. She was told the times of the field trip and who would be supervising Tara’s group. She then executed and returned the permission slip to the Department.

At the game, the children did not sit in the “comfy seats” behind screening as they had in the past. Instead, Tara was required by the Department to sit on bleachers or the adjacent grassy area along the third base line that was unprotected by screening or netting. Tara chose a seat in the third or fourth row of bleachers. The Department supervisors did not allow the children to move to another location in the stadium.

At a midpoint in the game, a player lost his grip on a bat. The record indicated that the bat -flew a distance of about 120 feet along the third base line at a height of approximately six feet. The bat was airborne for two or three seconds before it struck Tara on the right side of her head. Prior to being struck by the bat, Tara had turned to talk to a friend.

At the time of the incident, no supervisors from the Department were in Tara’s immediate vicinity. One. supervisor who viewed the incident from a distance testified that an adult in the area could possibly have done something, either trying to knock down the bat or yelling for the kids to duck. Cynthia, at her deposition, however, testified that the incident could not have been avoided had an adult been in Tara’s place.

Plaintiffs sued the City and a number of other defendants, including the baseball player involved and the teams playing the game. The plaintiffs’ claims against the City sounded in negligence.

The City filed a motion for summary judgment asserting that the permission slip constituted a waiver of the plaintiffs’ claims and that, in any event, the plaintiffs could not show a breach of any duty of care owed by the City. With respect to the permission slip, the City noted that the language specifically states that a parent realizes that the “Bettendorf Park Board is not responsible or liable for any accidents or injuries that may occur while on this special occasion” and that “[fjailure to sign this release” is “grounds for denial of participation.” On the issue of breach of duty, the City argued that there was nothing that the City should have done to avoid the accident.

Plaintiffs resisted and filed a cross motion for summary judgment. On the issue of waiver, the plaintiffs contended that the permission slip did not amount to a valid anticipatory release of future claims based upon the City’s negligent acts or omissions. The plaintiffs further argued that even if the permission slip amounted to a valid release, it was fatally flawed because it purported to release only the Department and not the City. Finally, plaintiffs asserted even if the permission slip amounted to an anticipatory release of future claims based on acts or omissions of negligence, statutory and common law public policy prevents a parent from waiving such claims on behalf of a minor child.

In resisting the City’s motion for summary judgment based upon the lack of a breach of duty, the plaintiffs, in addition to testimony of lay witnesses, offered a report from Susan Hudson, a professor at the University of Northern Iowa and an expert on playground and park safety. Based on her review, Hudson found that the Department breached its duty of care toward the plaintiffs in several ways. Hudson opined that the Department breached its duty of care by: (1) not informing the Sweeneys about the nature of possible harm even though Cynthia personally inquired about the nature of the activity; (2) not anticipating the known and foreseeable harm that could occur by not paying attention to the selection of seating; (3) not providing direct instructions to the children about paying attention to the possibility of bats and balls flying into the bleacher area; and (4) not providing direct supervision for children under their care.

The district court granted the City’s motion for summary judgment. The district court found that the permission slip constituted a valid waiver of plaintiffs’ claims. In the alternative, the district court found that the plaintiffs did not present sufficient evidence to establish a breach of duty owed to them. Plaintiffs appealed.

II. Direct vs. Interlocutory Appeal.

At the outset, there is a question of whether this case presents a direct appeal or is interlocutory in nature. A direct appeal is heard as a matter of right, while this court has broad discretion to consider whether to hear an interlocutory appeal. Iowa R.App. P. 6.1(c). The central issue is whether an appeal of a district court order which dismisses all claims against one party in a negligence action involving multiple defendants is direct or interlocutory.

In Buechel v. Five Star Quality Care, Inc., 745 N.W.2d 732 (Iowa 2008), we considered this question. In Buechel, we noted that under our comparative fault statute, fault sharing cannot occur with a defendant who is no longer a party to the litigation through grant of summary judgment. Buechel, 745 N.W.2d at 735; Spaur v. Owens-Corning Fiberglas Corp., 510 N.W.2d 854, 863 (Iowa 1994). As a result, the issues in the motion for summary judgment had impact on the issues of liability against the remaining defendants, are not severable, and are therefore interlocutory in nature. Buechel, 745 N.W.2d at 735. Nonetheless, as in Buechel, we exercise our discretion to treat the notice of appeal here as an application for interlocutory appeal, grant the application, and consider the underlying merits. Id. at 736.

III. Standard of Review.

We review a district court’s order on a motion for summary judgment for correction of errors at law. Ratcliff v. Graether, 697 N.W.2d 119, 123 (Iowa 2005). Summary judgment is appropriate when the moving party shows there is no genuine issue of material fact. Berte v. Bode, 692 N.W.2d 368, 370 (Iowa 2005). Summary judgment should not be granted if reasonable minds can differ on how a material factual issue should be resolved. Walker v. Gribble, 689 N.W.2d 104, 108 (Iowa 2004).

IV. Discussion.

A. Permission Slip as Anticipatory Release of Claims of Negligence. This case involves an exculpatory provision contained in a permission slip signed by the parent of a minor child in connection with recreational activities sponsored by a municipality.¹ The validity of exculpatory provisions which release future claims in connection with recreational activities is a topic that has been thoroughly explored in the academic literature. See, e.g., Mary Ann Connell & Frederick G. Savage, Releases: Is There Still a Place for Their Use by Colleges & Universities?, 29 J.C. & U.L. 579 (2003); Mark Seiberling, “Icing” on the Cake: Allowing Amateur Athletic Promoters' to Escape Liability in Mohney v. USA Hockey, Inc., 9 Vill. Sports & Ent. L.J. 417 (2002). The academic commentators note courts considering such exculpatory provisions deal with the inherent tensions between the law of torts, which generally requires parties to be responsible for their acts of negligence, and the law of contracts, which allows a competent party to make his or her own agreements. Connell & Savage, 29 J.C. & U.L. at 580; Seiberling, 9 Vill. Sports & Ent. L.J. at 428.

. The early Iowa cases dealing with exculpatory provisions involve real estate contracts. As early as 1921, we considered the effect of a provision in a real estate lease that provided that in no case should the lessor be liable for damage to the property. Oscar Ruff Drug Co. v. W. Iowa Co., 191 Iowa 1035, 181 N.W. 408 (1921). Among .other things, we noted that the clause in the lease was couched in general terms and did not specifically exempt the lessor from liability for its own negligent acts. Id. at 1042, 181 N.W. at 411. As a result, we held that the lease did not release the lessor from damages resulting from the lessor’s own negligence. Id. at 1043,181 N.W. at 412.

More than thirty-five years later, we considered the effect of provisions in a real estate lease which the tenant claimed relieved the tenant from liability for a fire that was allegedly caused by its own negligence. Sears, Roebuck & Co. v. Poling, 248 Iowa 582, 81 N.W.2d 462 (1957). The lease in Sears, among other things, obligated the tenant to keep the premises in good condition, “loss by fire ... excepted.” Id. at 586, 81 N.W.2d at 464. While this contractual provision might have had a bearing on fire losses not caused by the tenant’s negligence, we held that the general exculpatory language did not immunize the tenant from liability for damage to the landlord’s premises caused by its own negligence. Id. at 589, 81 N.W.2d at 466. In reaching this determination, we cited with approval an annotation stating that “broad exculpatory provisions” would rarely immunize a defendant for acts of affirmative negligence. Id. at 588, 81 N.W.2d at 465 (citation omitted). We further cited with approval Oscar Ruff Drug and cases from other jurisdictions holding that contract provisions will not be held to relieve a party of liability for its own negligence unless the intention to do so is clearly expressed. Id. at 591-92, 81 N.W.2d at 467-68; see Oscar Ruff Drug, 191 Iowa at 1035, 181 N.W. at 408; see also Fields v. City of Oakland, 137 Cal.App.2d 602, 291 P.2d 145, 149 (1955); Winkler v. Appalachian Amusement Co., 238 N.C. 589, 79 S.E.2d 185, 190 (1953); Carstens v. W. Pipe & Steel Co., 142 Wash. 259, 252 P. 939, 941 (1927).

Following Sears, we decided Baker v. Stewarts’ Inc., 433 N.W.2d 706 (Iowa 1988), a case outside the real estate setting. In Baker, we considered the validity of a document signed by a plaintiff who claimed that hair straightening products applied to her scalp at a cosmetology school produced subsequent baldness. Baker, 433 N.W.2d at 707. The document stated in relevant part, “I will not hold the Stewart School, its management, owners, agents, or students liable for any damage or injury, should any result from this service.” Id.

In Baker, we held that this document did not amount to an anticipatory release of future claims based upon negligent acts or omissions of the professional staff of a cosmetology school because a release of such claims would not be apparent to a casual reader. Id. at 709. We cited Sears and dicta in the indemnity case of Evans v. Howard R. Green Co., 231 N.W.2d 907, 916-17 (Iowa 1975), for the proposition that general exculpatory provisions do not cover the negligence of a party unless the intention to do so is clearly expressed. Id. In other words, the general exculpatory provision in Baker, which stated that the customer would not hold “management, owners, agents or students liable for any damage or injury,” was insufficient to release the defendant from liability for the negligent acts of its professional staff. Id.

In contrast, in Huber v. Hovey, 501 N.W.2d 53, 56 (Iowa 1993), we held that a document signed by a spectator to an auto race did amount to an enforceable anticipatory release of future claims based on negligent acts or omissions of a party. In Huber,, the document in question emphasized that it was a “covenant not to sue” and that it “releases” the promoter “from all liability ... [for] all loss or damage, and any claim ... on account of injury ... whether caused by the negligence of the releasees or otherwise.... ” 501 N.W.2d at 54. We distinguished this language from the sort utilized in Baker, noting that the document specifically indicated that it was a release of claims caused by the negligence of one of the parties. Id. at 56; see also Grabill v. Adams County Fair & Racing Ass’n, 666 N.W.2d 592 (Iowa 2003).

The permission slip in this case is much closer to the document in Baker than in Huber. As in Baker, the permission slip contains no clear and unequivocal language that would notify a casual reader that by signing the document, a parent would be waiving all claims relating to future acts or omissions of negligence by the City. Baker, 433 N.W.2d at 707. The language at issue here refers only to “accidents” generally and contains nothing specifically indicating that a parent would be waiving potential claims for the City’s negligence. See Alliant Energy-Interstate Power & Light Co. v. Duckett, 732 N.W.2d 869, 878 (Iowa 2007) (holding a utility tariff that released utility from “all claims, demands, costs, or expenses for injury ... or damage” was not sufficient to release utility from its own negligent acts). As noted in a recent best seller, the term “accident” normally means “unpreventable random occurrences.” See Marc Gernstein with Michael EUsberg, Flirting with Disaster: Why Accidents are Rarely Accidental 3 (2008). The general language in this permission slip simply does not meet the demanding legal standards of our Iowa cases.

While we have not previously considered the effect of exculpatory provisions in the specific context of sponsored recreational activities, we see no basis for departing from the Baker-Huber principles in this context. The cases from other jurisdictions demonstrate the reluctance of courts to provide defendants who sponsor recreational activities a more lenient framework for analyzing exculpatory clauses seeking to limit liability for the sponsors’ own negligence. Several .state courts in a recreational context have adhered to a bright-line test, requiring that the specific words negligence or fault be expressly used if an exculpatory provision is to relieve a defendant from liability for its own negligent acts or omissions. See Alack v. Vic Tanny Int’l of Mo., Inc., 923 S.W.2d 330, 337 (Mo.1996) (noting general exculpatory language releasing “any ... injuries” and “all claims” does not suffice to release party of its own negligence, because such language creates a latent ambiguity in exculpatory contracts); Geise v. Niagara County, 117 Misc.2d 470, 458 N.Y.S.2d 162, 164 (Sup.Ct.1983) (holding words “fault” or “neglect” must be used to bar claim for party’s own negligence).

Other courts in the context of recreational activities have not required magic words, but have imposed a demanding requirement that the intention to exclude liability for acts and omissions of a party must be expressed in clear terms. Sirek v. Fairfield Snowbowl, Inc., 166 Ariz. 183, 800 P.2d 1291, 1295 (Ct.App.1990) (requiring intention to immunize for negligent acts be clearly and explicitly stated); Turnbough v. Ladner, 754 So.2d 467, 470 (Miss.1999) (finding general exculpatory provision inadequate and noting release of acts of a party’s own negligence must be expressed in “specific and unmistakable terms”); Gross v. Sweet, 49 N.Y.2d 102, 424 N.Y.S.2d 365, 400 N.E.2d 306, 309-10 (N.Y.1979) (noting that while the word “negligence” need not specifically be used, words conveying a similar import must appear).² The approach of these cases is consistent with the approach in Iowa exculpatory clause cases generally. See Baker, 433 N.W.2d at 709 (requiring a clear and unequivocal expression). We see no reason to relax from the approach in Baker merely because this case involves a recreational activity.

In looking at cases involving recreational activities, language similar to that used by the City in this case has been found insufficient to support a release of a party’s own negligence. For example, in Doyle v. Bowdoin College, 403 A.2d 1206, 1208 (Me.1979), the court found the use of the term “accidents” insufficient to provide a basis for release from a party’s own negligence. See Hroblak, 27 U. Balt. L.Rev. at 471 (noting drafter should not seek to release party from any “accidents” because the .term is ambiguous and insufficient to release own negligent acts); see also O’Connell v. Walt Disney World Co., 413 So.2d 444, 446-47 (Fla.Dist.Ct.App.1982) (finding language stating company held harmless from liability and from risks inherent in riding activity not sufficient to release its own negligence); Calarco v. YMCA of Greater Metro. Chicago, 149 Ill.App.3d 1037, 103 Ill.Dec. 247, 501 N.E.2d 268, 272-73 (1986) (holding provision to hold YMCA “free from any and all liability” and discharging “any and all rights and claims for damages” not sufficient to relieve YMCA of liability for its own negligence).

For the reasons expressed above, we hold that the language in the permission slip in this case does not constitute an enforceable anticipatory release of claims against the City for its negligent acts or omissions in connection with the field trip.³

B. Application of Inherent Risk Doctrine to Defeat Negligent Supervision Claim. The City, while acknowledging that it owed Tara a duty of care, seeks to limit that duty through the application of the inherent risk doctrine. The City claims that the risk of being injured by flying bats and balls when seated outside screening is unavoidable as it is an inherent part of attending a baseball game. As a result, the City claims, it had no duty to protect Tara from the subsequent injuries. The question of the proper scope of legal duty is a question of law to be determined by the court. J.A.H. ex rel. R.M.H. v. Wadle & Assocs., P.C., 589 N.W.2d 256, 258 (Iowa 1999); Leonard v. State, 491 N.W.2d 508, 511-12 (Iowa 1992).

In support of its position, the City cites Anderson v. Webster City Community School District, 620 N.W.2d 263 (Iowa 2000). In Anderson, a seven-year-old boy broke his leg while sledding during a noon recess at his elementary school. Anderson, 620 N.W.2d at 265. The jury instruction in that case noted that some risks naturally attend participation in recreational activities and that the sponsor has a duty only to protect a participant from unreasonable risks of harm. Id. at 266. The Anderson court noted that the instruction was similar to the “primary assumption of risk doctrine” which, while no longer utilized in Iowa, was an alternative expression for the proposition that a defendant is not negligent or owed no duty for risks inherent in certain activities. Id. at 267.

The City also cites Dudley v. William Penn College, 219 N.W.2d 484 (Iowa 1974), in support of its motion for summary judgment. In Dudley, a plaintiff baseball player, who was hit by a foul ball, claimed that the college should have had dugouts or netting protecting the participants from the playing field. Dudley, 219 N.W.2d at 485. We rejected that claim, noting that the duty that was owed extended only to those risks that were unreasonable. Id. at 486-87. “[Pjlayers in athletic events accept the hazards which normally attend the sport.” Id. at 486. As a result, we held that the injured player did not have a cause of action against the coach and college. Id. at 487. In sum, the City argues that it did not breach its duty of care because being struck by a bat is an inherent risk of attending a minor league baseball game.

Plaintiffs view the case differently. They distinguish Anderson on the ground that the City had a much greater control over the activities of the children in this case. They note that the City determined that Tara would sit on bleachers unprotected by screening and that the City chose not to follow accepted recreational and leisure standards for the proper safety and supervision of children by failing to ensure direct supervision and by failing to warn them and their parents of the danger of flying bats when sitting in unprotected areas. Tim plaintiffs further note that in Anderson, whether the defendants unreasonably failed to protect the plaintiff was a question for the jury to decide.

The plaintiffs assert Dudley is inappo-site. They see Dudley as a variant of the limited liability rule which relieves baseball park owner-operators of responsibility for flying objects. Here, however, the question on appeal relates not to the duty of the owner-operator of a baseball facility, but to the duty of the City -to properly supervise Tara while attending the game. The City, plaintiffs argue, directed Tara to sit in an unprotected area and then did not provide adequate direct supervision in that area. Further, plaintiffs argue that their expert provided a sufficient basis for a jury to determine that the City acted unreasonably under all' the facts and circumstances.

In the majority of cases, spectators sitting outside protective netting at baseball stadiums have been unable to recover from owners or operators for injuries related to errant bats and balls on the ground that such injuries were an “inherent risk” of attending the game. See generally James L. Rigelhaupt, Jr., Annotation, Liability to Spectator at Baseball Game Who is Hit by Ball or Injured as Result of Other Hazards of Game, 91 A.L.R.3d 24 (1979). Claims against owners or operators for injuries incurred by flying bats and balls that have been decided after the movement toward comparative negligence tend to characterize nonliability as based on a “limited duty” theory. See, e.g., Vines v. Birmingham Baseball Club, Inc., 450 So.2d 455, 456 (Ala.1984) (Torbert, C.J., concurring specially); Lawson v. Salt Lake Trappers, Inc., 901 P.2d 1013, 1015-16 (Utah 1995); Perez v. McConkey, 872 S.W.2d 897, 900 (Tenn.1994); Daniel E. Wanat, Torts and Sporting Events: Spectator and Participant Injuries — Using Defendant’s Duty to Limit Liability as an Alternative to the Defense of Primary Implied Assumption of Risk, 31 U. Mem. L.Rev. 237 (2001).

Regardless of whether the approach is characterized as involving inherent risk or a limited duty, courts applying the doctrine have held that the owner or operator of a baseball stadium is not liable for injury to spectators from flying bats and balls if the owner or operator provided screened seating sufficient for spectators who may be reasonably anticipated to desire such protection and if the most dangerous areas of the stands, ordinarily the area behind home plate, were so protected. Quinn v. Recreation Park Ass’n, 3 Cal.2d 725, 46 P.2d 144, 146 (1935); Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 441 N.Y.S.2d 644, 424 N.E.2d 531, 533-34 (1981). In Arnold v. City of Cedar Rapids, 443 N.W.2d 332, 333 (Iowa 1989), we adopted a version of the limited duty rule in a premises liability case with respect .to misthrown balls.⁴

This case, however, does not involve a premises liability claim against the owner or operator of a baseball stadium. Instead, the issue is whether the district court erred in granting summary judgment in a negligent supervision case against the City based on its view that the injury was due to “an inherent risk in attending the baseball game.”

We conclude that the district court erred in granting summary judgment based on inherent risk. A negligent supervision case is fundamentally different than a case involving premises liability. The eight-year-old child in this case made no choice, but instead sat where she was told by the Department. The plaintiffs further claim that there was inadequate adult supervision where the child was seated. The alleged negligence in this case does not relate to the instrumentality of the injury, but instead focuses on the proper care and supervision of children in an admittedly risky environment. See, e.g., Stanley v. Bd. of Educ., 9 Ill.App.3d 963, 293 N.E.2d 417, 422 (1973) (holding alleged negligent supervision of children in thrown bat case raises jury question in light of expert opinion); Cook v. Smith, 33 S.W.3d 548, 553-54 (Mo.Ct.App.2000) (noting acceptance of custody and care of minor child creates duty of care independent of premises liability); Havens v. Kling, 277 A.D.2d 1017, , 715 N.Y.S.2d 812 (N.Y.App.Div.2000) (holding parents of eleven-year-old inexperienced golfer did not have claim against twelve-year-old golfer who hit son on the head with club, but did have claim against golf shop and event sponsor for negligent supervision); Gordon v. Deer Park Sch. Dist. No. Ill, 71 Wash.2d 119, 426 P.2d 824, 828 (1967) (finding possible negligence claim where bat slips from hands of teacher).

Viewed as a negligent supervision case, the City had a duty to act reasonably, under all the facts and circumstances, to protect the children’s safety at the ball park. City of Cedar Falls v. Cedar Falls Cmty. Sch. Dist., 617 N.W.2d 11, 16-17 (Iowa 2000). The gist of the plaintiffs’ claim is that a substantial cause of the injury was the supervisors’ decision to allow the children, who cannot be expected to be vigilant at all times during a baseball game, to be seated in what a jury could conclude was an unreasonably hazardous location behind third base instead of behind the safety of protective netting. From this perspective, the inevitable exposure of the children to flying balls and bats that arises from sitting outside the range of protective netting does not provide a complete defense, but instead is a factor for a jury to consider in determining whether the acts and omissions of the supervisors were reasonable under all the facts and circumstances. As in Anderson, moreover, whether a defendant has breached its duty of care under all the circumstances is ordinarily a jury question, particularly where the plaintiff has offered expert testimony indicating that the defendant did not follow customary practices for the safety of children when engaged in recreational activities. Anderson, 620 N.W.2d at 266-67.

As a result, the City is not entitled to summary judgment with respect to the specifications of negligence in the plaintiffs’ expert report on the ground of “inherent risk” or the “limited duty doctrine.” The extent to which an injured party knowingly engages in risky behavior in a negligent supervision case is a factor for the fact finder to consider in the framework of comparative fault.

C. Cause in Fact Challenge to Claim of Lack of Direct Supervision.

The City also advances an alternate argument in partial defense to some aspects of the plaintiffs’ negligent' supervision claim. To the extent that the plaintiffs’ case rested on the failure to have adult supervision in close proximity to Tara when the children were seated along the third base line, the City argued that such direct supervision would not have made a difference. The City’s argument amounts to a claim that even if the City breached its duty toward Tara by not providing adequate adult supervision, that breach of duty was not the cause of Tara’s injuries.

We have held that causation has two components: cause in fact and legal cause. Faber v. Herman, 731 N.W.2d 1, 7 (Iowa 2007). Cause in fact is a but-for test, while determination of legal or proximate cause reflects a policy judgment that the cause of the accident is not so remote or attenuated, that liability should not be imposed. Id. Ordinarily, determination of cause in fact is a question for the fact finder to determine. Id.

Conceding for purposes of summary judgment that the City had a legal duty to reasonably supervise its charges, and further assuming that the City breached its duty of reasonable care by failing to provide direct supervision to the children in a ratio of one adult for ten children as suggested by plaintiffs’ expert, the alleged breach of duty cannot satisfy the “but-for” element of proximate cause for Tara’s inju-ríes as a matter of law. , Although whether a breach of duty was a cause in fact of injuries sustained by the plaintiff is ordinarily a fact question, the evidence in this case, even when viewed in the light most favorable to the plaintiff, does not establish a triable issue.

In order to establish cause in fact, the plaintiff need not show certainty or inevitability, but the plaintiff must offer something beyond mere conjecture and speculation. Easton v. Howard, 751 N.W.2d 1, 6 (Iowa 2008) (quoting George v. Iowa & S.W. Ry. Co., 183 Iowa 994, 997-98, 168 N.W. 322, 323 (1918)). A plaintiff must offer sufficient evidence for a fact finder to conclude by a preponderance of evidence that the injuries that occurred would likely have been avoided absent the breach of duty. Mere guesswork about what might have occurred is not enough.

Here, the evidence simply is not sufficient to allow a reasonable fact finder to conclude that in all likelihood the injuries to Tara would have been avoided if the City would have provided' the direct adult supervision as urged by plaintiffs’ expert. Even if the City provided direct supervision in the ratio of one adult for every ten children, there no is reason to believe that an adult supervisor would likely have been able to knock down the bat or warn Tara effectively to avoid injury.

In order to block the flying bat, the supervisor would have had to have seen the bat leave the hands of the batter and would have had to have sufficient presence and verve to thrust himself or herself into harm’s way to knock down the projectile. This scenario is improbable enough, but there is also no reason to believe that a supervisor would have been sitting in sufficiently' close proximity to be ■ physically able to knock down the bat. In short, the City could have met the plaintiffs’ expert’s standard for direct supervision without affecting the outcome of this tragic affair.

Perhaps realizing the difficulties of persuading a fact finder that a fortuitous courageous block would have occurred but for the breach of duty, the plaintiffs fall back on a warning theory. While an adult seated in the vicinity of Tara would have been in a position to provide a louder and more direct warning to her than a supervisor at a greater, distance, a reasonable fact finder could not conclude that the accident would have likely been avoided if there was direct supervision as suggested by plaintiffs’ expert. The errant bat in this case did not fly like a helicopter seed dropping from some tree, but rapidly ripped through the air at a low elevation to its unhappy destination. Under these facts, it is anyone’s guess as to whether a sharp verbal warning, even if immediately given, would have done the job. We therefore hold that plaintiffs have failed to generate a fact question on the proposition that enhanced direct supervision would have provided sufficient warning to Tara to avoid the injuries.

Our ruling on the issue of cause in fact is consistent with the case law in a number of other jurisdictions that have considered the issue in the context of flying balls and bats.⁵ Further, our decision, though disappointing perhaps, will not come as a total shock to the plaintiffs. Tara’s mother testified in this case that there was nothing a supervisor sitting in the vicinity could have done to avoid Tara’s injuries. We do not regard Tara’s mother’s testimony as a binding admission, but the observation is obviously consistent with our conclusion that the evidence does not establish a triable issue of cause in fact on the ground of lack of direct supervision. Cf. Meyer v. Mulligan, 889 P.2d 509, 516 (Wyo.1995) (noting that lay people are generally not competent to pass judgment on legal questions, including cause).

V. Conclusion.

The permission slip in this case did not release the City from alleged acts of future negligence. Further, the doctrine of inherent risk does not provide a basis to defeat the plaintiffs’ theories of negligence in this case. To the extent the plaintiffs argue that the City breached its duty of care by failing to provide direct supervision to the children once they were seated along the third base line at the ball park, we conclude that the plaintiffs failed as a matter of law to adduce sufficient evidence to raise a triable issue. To this extent, the City is entitled to summary judgment in this case. As a result, the district court’s grant of summary judgment is affirmed in part and reversed in part.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

All justices concur except CADY, J., who dissents and STREIT, J., who concurs in part and dissents in part.

1 . While many cases appear to use the terms interchangeably, an exculpatory provision is similar but not identical to an indemnity provision. An indemnity provision ordinarily allocates risks of third party losses among parties to a contract. In an indemnity context, at least one party remains liable for the third party losses. The victim thus still has a source of recovery. An exculpatory provision, however, does not allocate risk between responsible parties but eliminates liability all together. Cathleen M. Devlin, Indemnity & Exculpation: Circle of Confusion in the Courts, 33 Emory L.J. 135, 170-71 (1984).

2 . Even in these jurisdictions, the better practice is to expressly use the term 'negligence” in the exculpatory agreement. See Swartzentruber v. Wee-K Corp., 117 Ohio App.3d 420, 690 N.E.2d 941, 945 (1997) (noting that the "better practice” would be to expressly include the word "negligence”); Dobratz v. Thomson, 161 Wis.2d 502, 468 N.W.2d 654, 663 (1991) (refusing to adopt a magic words test, but noting the use of term "negligence” would be "very helpful"); see also Steven B. Lesser, How to Draft Exculpatory Clauses That Limit or Extinguish Liability, 75 Fla. B.J. 10, 14 (Nov.2001) (noting from a practical standpoint, utilization of the word "negligence” should increase the likelihood of enforcement); Kevin G. Hroblak, Adloo v. H.T. Brown Real Estate, Inc.: "Caveat Exculpator"- — An Exculpatory Clause May Not Be Effective Under Maryland's Heightened Level of Scrutiny, 27 U. Balt. L.Rev. 439, 469 (1998) (noting a risk adverse drafter should use the word "negligence” in all exculpatory clauses).

3 . As a result of our disposition of the release issue, we do not consider four other arguments advanced by the plaintiffs. First, we do not consider whether the failure to specifically name the City in the release prevents its enforcement by the City. Second, we also do not address the question of whether a parent may release the claims of a minor for the negligent acts or omissions of a sponsor of recreational events. The case law from other jurisdictions is divided on this issue. Compare Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381, 389-90 (2006), with Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 696 N.E.2d 201, 205 (1998). See generally Doyice J. Cotten, Sarah J. Young, & Sport Risk Consulting, Effectiveness of Parental Waivers, Parental Indemnification Agreements, & Parental Arbitration Agreements as Risk Management Tools, 17 J. Legal Aspects Sport 53 (2007). Third, we do not consider the implications on this case, if any, of Iowa Code section 599.2 (2003), which allows a minor to disaffirm contracts with certain exceptions. Fourth, we do not consider the general question of whether public policy voids a contract provision releasing claims of negligence under the circumstances presented here. See Tunkl v. Regents of Univ. of Cal., 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, 446-47 (1963).

4 . There has been some resistance to inherent risk or the limited duty doctrine. For example, Professor James noted long ago that the primary assumption of risk doctrine, of which the limited duty rule is a variant, provides "an exceptional curtailment of defendant’s duty below the generally prevailing one to take care to conduct oneself so as not to cause unreasonable danger to others.” Fleming James, Jr., Assumption of Risk, 61 Yale L.J. 141, 168 (1952). More recently, a few judges have directly challenged the limited duty rule. See Maisonave v. Newark Bears Prof'l Baseball Club, Inc., 185 N.J. 70, 881 A.2d 700, 710-13 (2005) (Wallace, J., concurring), superseded by statute, New Jersey Baseball Spectator Safety Act of 2006, N.J. Stat. Ann. § 2A:53A-43-48 (2006); Akins, 441 N.Y.S.2d 644, 424 N.E.2d at 536 (Cooke, J., dissenting). There appears to be a move within the legal profession away from the rule. See Restatement (Third) of Torts: Apportionment of Liability § 3 cmt. c, illus. 6, at 32-33 (2000) (replacing limited duty with comparative fault in cases involving injury to baseball spectators). In addition, recent academic commentary has challenged the doctrine. David Horton, Rethinking Assumption of Risk & Sports Spectators, 51 UCLA L.Rev. 339, 366 (2003) (noting increasingly hazardous nature of stadium seating in light of increased pitching speeds, greater batting capability, and stadium design that places patrons in a zone of danger); Gil Fried & Robin Ammon, Baseball Spectators’ Assumption of Risk: Is it "Fair" or "Foul”?, 13 Marq. Sports L.Rev. 39, 61 (2002) (same). There is no occasion on this appeal to revisit the application of inherent risk or limited duty doctrine in the context of a premises liability claim.

5 . See, e.g., Benedetto v. Travelers Ins. Co., 172 So.2d 354, 355 (La.Ct.App.1965) (finding no amount of supervision could have altered manner in which bat was thrown); Lang v. Amateur Softball Ass’n of Am., 520 P.2d 659, 662 (Okla.1974) (finding no triable issue in wild pitch case where it was not reasonably apparent that injuries suffered were caused by wrongful act).