This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Pamela K. Hanson,
Bill Bieloh and Kathy Bieloh,
d/b/a Moondance Ranch and Wildlife Park,
Filed July 3, 2007
Cass County District Court
File No. 11-CV-06-269
Steven A. Nelson, 210 Fourth Avenue, International Falls, MN 56649 (for appellant)
Byron M. Peterson, Rolf E. Sonnesyn, Tomsche, Sonnesyn & Tomsche, P.A., 610 Ottawa Avenue North, Minneapolis, MN 55422 (for respondents)
Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Harten, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant Pamela K. Hanson challenges the district court’s grant of summary judgment in favor of respondents after determining that the exculpatory clause appellant signed was valid and enforceable against her negligence claim for injuries sustained after falling off of a horse. Appellant argues that (1) the exculpatory clause is not enforceable; (2) respondents were grossly negligent, putting their conduct outside of exculpatory-clause coverage; and (3) respondents breached warranties that the horse was safe. We affirm.
D E C I S I O N
Appellant Pamela K. Hanson argues that the district court erred by granting summary judgment in favor of respondents Bill Bieloh and Kathy Bieloh, d/b/a Moondance Ranch and Wildlife Park. The district court may grant a motion for summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that either party is entitled to judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). On review of the district court’s grant of summary judgment, this court considers whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). This court views “the evidence in the light most favorable to the party against whom judgment was granted.” Fabio,504 N.W.2d at 761.
Appellant challenges enforcement of the exculpatory clause in the agreement she signed. Minnesota recognizes the validity of exculpatory clauses, but they are disfavored and “strictly construed against the benefited party.” Beehner v. Cragun Corp., 636 N.W.2d 821, 827 (Minn. App. 2001) (quotation omitted), review denied (Minn. Feb. 28, 2002). An exculpatory clause is unenforceable if
(1) it is ambiguous in scope or purports to release a party from liability for intentional, willful, or wanton acts;
(2) there was a disparity of bargaining power between the parties to the agreement; or
(3) the type of service being offered or provided by the exculpated party is either a public or an essential service.
Here, before riding a horse, appellant signed a Horse Rental Agreement and Liability Release Form (agreement). Appellant checked-off or initialed each clause in the agreement. Among other things, the agreement provided:
LIABILITY RELEASE I AGREE THAT: In consideration of THIS STABLE allowing my participation in this activity, under the terms set forth herein, I, the rider, . . . do agree to hold harmless, release, and discharge THIS STABLE, its owners, agents, employees, officers, directors, representatives, assigns, members, owners of premises and trails, affiliated organizations, insurers, and others acting on its behalf (hereinafter, collectively referred to as “ASSOCIATES”), of and from all claims, demands, causes of action and legal liability, whether the same be known or unknown, anticipated or unanticipated, due to THIS STABLE’S and/or ITS ASSOCIATES [sic] ordinary negligence; and I do further agree that except in the event of THIS STABLE’S gross negligence and willful and wanton misconduct, I shall not bring any claims, demands, legal actions and causes of action, against THIS STABLE and ITS ASSOCIATES as stated above in this clause, for any economic and non-economic losses due to bodily injury, death, property damage, sustained by me and/or my minor child and/or legal ward in relation to the premises and operations of THIS STABLE, to include while riding, handling, or otherwise being near horses owned by or in the care, custody and control of THIS STABLE, whether on or off the premises of THIS STABLE.
Before mounting, appellant saw a horse kicking and moving from side to side. Appellant asked an employee if the horse was safe and the employee told appellant that the horse was safe and not to worry. Appellant was directed to get on the horse she had seen kicking and shifting; she again asked if the horse was safe and was told that she had nothing to worry about. As appellant sat on the horse, an employee led another horse behind her. Appellant’s horse began stamping its feet, swaying from side to side, and kicking. Appellant fell off and sustained injuries.
The district court determined that this case is controlled by Beehner and concluded that the exculpatory clause here was enforceable. In Beehner, a horseback rider signed a horse-rental agreement with liability-release language that was nearly identical to the agreement appellant signed. Id. at 825-26. Beehner’s saddle girth loosened during her ride causing her saddle to slip. As she leaned against a tree for support and called for assistance, a dog frightened her horse, which shied and threw Beehner to the ground. Id. at 826. The supreme court held that the exculpatory clause was enforceable because it was unambiguous, it released defendants only from liability for ordinary negligence, and there was no disparity in bargaining power because the activity was recreational. Id. at 827-29.
Because the release here is essentially identical to the release in Beehner, and the supreme court has already determined that this release is generally enforceable, we conclude that the district court did not err in granting summary judgment in favor of respondents on this issue.
Appellant argues that even if the release is enforceable, respondents’ conduct was not ordinary negligence covered under the exculpatory clause, but constituted gross negligence or was wanton and willful. “In a dispute over the applicability of an exculpatory clause, summary judgment is appropriate only when it is uncontested that the party benefited by the exculpatory clause has committed no greater-than-ordinary negligence.” Beehner, 636 N.W.2d at 829. Gross negligence is “very great negligence or absence of even slight care, but [it is] not equivalent to wanton and willful” conduct. Ackerman v. Am. Family Mut. Ins. Co.,435 N.W.2d 835, 840 (Minn. App. 1989) (quotation omitted). Willful and wanton conduct is the “failure to exercise ordinary care after discovering another in a position of peril.” Bryant v. N. Pac. Ry.,221 Minn. 577, 585, 23 N.W.2d 174, 179 (1946).
In Beehner, the supreme court held that Beehner presented sufficient evidence to create a material issue of fact regarding whether the defendants’ conduct in permitting the dog to accompany the riders on the trail was grossly negligent, or willful or wanton. 636 N.W.2d at 829. The court based its holding on the fact that defendants had control over the dog and knew the risk the dog posed to riders’ safety, but still allowed the dog to accompany the riders on the trail. Id. at 829-30.
Here, appellant failed to present sufficient evidence to create a material issue of fact concerning whether respondents’ conduct was grossly negligent, or willful or wanton. Appellant contends that because the horse was “prone to kicking” and was “bossy” that respondents’ conduct of allowing appellant to ride that horse was grossly negligent, or willful or wanton. But the evidence in the record indicates that the horse did not have “a reputation as a ‘kicker’ or a risky animal.” We conclude that the district court did not err in granting respondents’ motion for summary judgment on the ground that appellant failed to present evidence that respondents’ conduct was willful, wanton, or grossly negligent.
Finally, appellant contends that the agreement contains implied warranties and that the employee who helped appellant on the horse gave express warranties that she did not have to worry about the horse. But because appellant failed to raise this breach-of-warranties claim in the complaint, we conclude that the district court did not err in granting summary judgment in favor of respondents on this issue.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.