Goss v. USA Cycling, Inc. , 2022 Ohio 2500 ( 2022 )

[Cite as Goss v. USA Cycling, Inc., 2022-Ohio-2500.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
HEATHER GOSS, :
Plaintiff-Appellant, :
No. 111084
v. :
USA CYCLING, INC., ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 21, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-20-931632
Appearances:
Barkan Meizlish DeRose Cox, LLP, Sanford A. Meizlish,
and Jason C. Cox, for appellant.
Marshall Dennehey Warner Coleman & Goggin, David J.
Fagnilli, and Jillian L. Dinehart, for appellee USA Cycling,
Inc.
Ogletree Deakins, Nash, Smoak & Stewart, P.C., John
Gerak, and Amanda T. Quan, for appellee Case Western
Reserve University.
Gallagher Sharp LLP, and Joseph Monroe, II, for appellee
Greater Cleveland Sports Commission.
EILEEN T. GALLAGHER, J.:
Plaintiff-appellant, Heather Goss (“Goss”), appeals from the trial
court’s judgment granting summary judgment in favor of defendant-appellees, USA
Cycling, Inc. (“USAC”), Case Western Reserve University (“CWRU”), and Greater
Cleveland Sports Commission (the “GCSC”) (collectively the “appellees”). Goss
raises the following assignments of error for review:
1. The trial court erred in finding that negligence as to racecourse safety
and design was within the contemplation of the appellant and the
appellees when the event release was executed.
2. The trial court erred by failing to address and adopt appellant’s
argument that Ohio should void broad, nonspecific, ambiguous waivers
of liability as a matter of public policy.
After careful review of the record and relevant case law, we affirm the
trial court’s judgment.
I. Procedural and Factual History
In 2016, the GCSC organized NEOCycle, a multi-day cycling festival
featuring criterium races, where cyclists race numerous laps around a closed-loop
race. The GCSC partnered with CWRU Cycling, a student-led cycling club, to
organize the criterium races sanctioned by USAC.
Individuals involved in the logistical organization of the event included
GCSC’s operation manager, Matthew Sajna (“Sajna”); CWRU staff-advisor, Ryan
Pierce (“Pierce”); and CWRU students, Henry Bermet (“Bermet”), Jasper Stallings
(“Stallings”), and Matthew Swartout (“Swartout”). With the exception of Swartout,
the event organizers had minimal experience in designing criterium-race courses.
(Pierce depo. at 46-48; Stallings depo. at 23-25, 43; Bermet depo. at 13, 21-22;
Swartout depo. at 23-24.) More significantly, the event organizers did not receive
specialized training in criterium-race course safety or design prior to the 2016 event.
Id. Despite their lack of training, however, members of the CWRU Cycling club were
directly involved in the design of the race course and the measures taken to ensure
safe racing conditions.
As part of the registration process for the NEOCycle event, Goss
executed a release form titled, “2016 USA Cycling Event Release Form AND One
Day License Application” (the “Event Release”). The Event Release provided, in
pertinent part:
I acknowledge that by signing this document, I am assuming risks,
agreeing to indemnify, not to sue and release from liability the
organizer of this event, USA Cycling, Inc. * * * and their respective
agents, insurers, employees, volunteers, members, clubs, officials,
sponsors, event directors, local associations, and affiliates (collectively
“Releasees”), and that I am giving up substantial legal rights. This
release is a contract with legal and binding consequences and it applies
to all races and activities entered at the event, regardless whether or not
listed above. I have read it carefully before signing and I understand
what it means and what I am agreeing to by signing.
I ACKNOWLEDGE THAT CYCLING IS AN INHERENTLY
DANGEROUS SPORT AND FULLY REALIZE THE DANGERS OF
PARTICIPATING IN THIS EVENT * * * and FULLY ASSUME THE
RISKS ASSOCIATED WITH SUCH PARTICIPATION INCLUDING, by
way of example, and not limitation: * * * the dangers of collision with
pedestrians, vehicles, or other riders, and fixed and moving objects; the
dangers arising from surface hazards, including pot holes, equipment
failure, inadequate safety equipment, * * * THE RELEASEES’ OWN
NEGLIGENCE, the negligence of others and weather conditions; and
the possibility of serious physical and/or mental trauma or injury, or
death associated with the event.
* * * I HEARBY WAIVE, RELEASE, DISCHARGE, HOLD HARMLESS,
AND PROMISE TO INDEMNIDY AND NOT SUE the Releasees * * *
FROM ANY AND ALL RIGHTS AND CLAIMS INCLUDING CLAIMS
ARISING FROM THE RELEASEES’ OWN NEGLIGENCE TO THE
MAXIMUM EXTENT PERMITTED BY LAW, which I have or may
hereafter accrue to me, and from any and all damages which may be
sustained by me directly or indirectly in connection with, or arising out
of, my participation in or association with the event[.]
***
I agree, for myself and my successors, that the above representations
are contractually binding, and are not mere recitals, and that should I
or my successors assert a claim contrary to what I have agreed to in this
contract, the claiming party shall be liable for the expenses (including
legal fees) incurred by the Releasees in defending the claims.
(Emphasis sic.) Goss had previously executed an agreement with USAC on April 14,
2016, in order to obtain a license from USAC to participate in USAC-sanctioned
events in 2016. This agreement, titled “Acknowledgment of Risk, Release of
Liability, Indemnification Agreement and Covenant Not to Sue” (the “Licensing
Release”), contained substantially similar language to that set forth in the Event
Release.
On September 10, 2016, Goss participated in two separate criterium
races at the NEOCycle event. In the morning event, Goss completed a 30-minute
ride. Later that afternoon, Goss returned to the same course to participate in her
second race. On the final lap of the second race, a cyclist in front of Goss
unexpectedly fell on the final turn of the race. The crash caused many cyclists,
including Goss, to lose control of their bicycles. Ultimately, Goss crashed into a
barrier, causing injuries to her neck, thyroid, larynx, and trachea. (Goss depo. 117-
118.)
On April 2, 2020, Goss filed a civil complaint against the appellees,
setting forth separate causes of action for negligence. In pertinent part, Goss alleged
that USAC, CWRU, and GCSC each breached their duty to “exercise ordinary and
reasonable care for the safety of [Goss]; to maintain said race course in a reasonably
safe condition; to give warning of latent or concealed perils thereon, of which [they]
knew or should have known; and not to expose such persons to unreasonable or
foreseeable risk of severe bodily harm and injury.” Regarding the course conditions
that allegedly led to Goss’s injuries, Goss asserted that “the race course design did
not conform to USAC’s own safety standards, insomuch as there was insufficient
distance from the race course’s final corner to the finish area. This insufficient
distance caused racers to begin their ‘final sprint’ to the finish line before the final
turn, thereby greatly increasing the chance for slide-outs and collisions.”
On July 23, 2021, USAC filed a motion for summary judgment, arguing
that Goss released USAC from negligence claims relating to her injuries sustained
during the NEOCycle criterium race by executing two valid and binding waivers of
liability. USAC asserted that the Event Release and the Licensing Release were each
“clear and unambiguous as to the type of liability being released (i.e. negligence
claims) and the persons being released (i.e. event organizers).” Alternatively, USAC
argued that even if Goss had not expressly assumed the risks associated with the
sporting event, the common-law doctrine of primary assumption of the risk required
Goss’s claim to fail. In support of its motion for summary judgment, USAC attached
copies of the Event Release and the Licensing Release, as well as deposition excerpts
from Sajna, Stallings, Pierce, and Goss.
On the same day, CWRU and GCSC filed a joint motion for summary
judgment, arguing that “Goss’s negligence claims are barred as a matter of law
because Goss signed a valid release waiving all claims, including negligence claims,
against CWRU and GCSC.” In support of their joint motion for summary judgment,
CWRU and GCSC attached copies of the Event Release and Licensing Release, as
well as the deposition testimony of Sajna, Pierce, Stallings, Bermet, and Goss.
On August 2021, Goss filed a brief in opposition to summary
judgment, arguing that because the language set forth in the Event Release was “so
general and ambiguous, reasonable minds could conclude that negligence as to the
race course safety and design was not within the contemplation of the [parties] when
the Event Release was executed.” Goss asserted that at the time she signed the Event
Release she “could not have comprehended the student planners’ lack of training
and experience in race-course safety,” or that “the actual race-course safety would
be so far beneath USAC’s safety standards.” Alternatively, Goss argued that the
broad waiver of liability should be deemed void as a matter of public policy.
In support of her brief in opposition, Goss attached a copy of the Event
Release, as well as deposition excerpts from Sajna, Pierce, Goss, Bermet, Stallings,
and Swartout. In addition, Goss attached a copy of the affidavit and report
submitted by plaintiff’s expert, Douglas Shapiro (“Shapiro”). Relevant to this
appeal, Shapiro opined as follows:
Based on my 40 plus years of cycling experience, both as a bike racer,
recreational cyclist and bicycle safety expert, it is my opinion the
defendants’ conduct was below the acceptable standard of care
required for safe race-course design and rider safety resulting in
dangerous conditions not commonly associated with ordinary risks
involved in the sport of cycling. The deviations from the standard of
care were the proximate cause of Ms. Goss’s crash and injuries.
(Plaintiff’s exhibit G, ¶ 16.)
On November 18, 2021, the trial court granted summary judgment in
favor of the appellees, stating, in pertinent part:
The court finds that Plaintiff executed a valid and binding pre-injury
waiver, releasing defendant[s] of liability. Summary judgment is
therefore entered in favor of defendant[s] and against Plaintiff.
Goss now appeals from the trial court’s judgment.
II. Law and Analysis
A. Negligence Safety and Design
In the first assignment of error, Goss argues the trial court erred in
finding that negligence as to race course safety and design was within the
contemplation of the parties at the time the event release was executed. Consistent
with the arguments posed before the trial court, Goss contends the Event Release
was “too ambiguous or general to effectively waive the negligent conduct of the
appellees.”
1. Standard of Review
We review an appeal from summary judgment under a de novo
standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d
241 (1996); Zemcik v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585,
706 N.E.2d 860 (8th Dist.1998).
Pursuant to Civ.R. 56, summary judgment is appropriate when (1)
there is no genuine issue of material fact; (2) the moving party is entitled to
judgment as a matter of law; and (3) reasonable minds can come to but one
conclusion and that conclusion is adverse to the nonmoving party, said party being
entitled to have the evidence construed most strongly in his favor. Horton v.
Harwick Chem. Corp., 73 Ohio St.3d 679, 653 N.E.2d 1196 (1995), paragraph three
of the syllabus. The party moving for summary judgment bears the burden of
showing that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662
N.E.2d 264 (1996).
Once the moving party satisfies its burden, the nonmoving party “may
not rest upon the mere allegations or denials of the party’s pleadings, but the party’s
response, by affidavit or as otherwise provided in this rule, must set forth specific
facts showing that there is a genuine issue for trial.” Civ.R. 56(E); Mootispaw v.
Eckstein, 76 Ohio St.3d 383, 385, 667 N.E.2d 1197 (1996). Doubts must be resolved
in favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-
359, 604 N.E.2d 138 (1992).
2. Negligence
To establish a negligence claim, the plaintiff must demonstrate a duty
owed by the defendant to the plaintiff, a breach of that duty, and that the plaintiff’s
injury proximately resulted from the defendant’s breach of duty. Everett v. Parma
Hts., 8th Dist. Cuyahoga No. 99611, 2013-Ohio-5314, ¶ 15.
It is well-established that Ohio law recognizes three types of
assumption of risk as defenses to negligence: express, primary, and implied or
secondary. Cameron v. Univ. of Toledo, 2018-Ohio-979, 98 N.E.3d 305, ¶ 41 (10th
Dist.), citing Schnetz v. Ohio Dept. of Rehab. & Corr., 195 Ohio App.3d 207, 2011-
Ohio-3927, 959 N.E.2d 554, ¶ 21 (10th Dist.), citing Crace v. Kent State Univ., 185
Ohio App.3d 534, 2009-Ohio-6898, 924 N.E.2d 906, ¶ 10 (10th Dist.). Pertinent to
this case, express assumption of the risk is applicable when the parties expressly
agree to release liability. Crace at ¶ 11, citing Ballinger v. Leaniz Roofing, Ltd., 10th
Dist. Franklin No. 07AP-696, 2008-Ohio-1421, ¶ 6.
“For express assumption of risk to operate as a bar to recovery, the
party waiving his right to recover must make a conscious choice to accept the
consequences of the other party’s negligence.” State Farm Fire & Cas. Co. v.
Scandinavian Health Spa, Inc., 104 Ohio App.3d 582, 586, 662 N.E.2d 890 (1st
Dist.1995), citing Anderson v. Ceccardi, 6 Ohio St.3d 110, 114, 451 N.E.2d 780(1983). “It follows that in order for a conscious acceptance to be made, an agreement
purporting to constitute an express assumption of risk must state a clear and
unambiguous intent to release the party from liability for its negligence.” Holmes v.
Health & Tennis Corp. of Am., 103 Ohio App.3d 364, 367, 659 N.E.2d 812 (1st
Dist.1995), citing Tanker v. N. Crest Equestrian Ctr., 86 Ohio App.3d 522, 621
N.E.2d 589 (9th Dist.1993).
“Releases from liability for future tortious conduct are generally not
favored by the law and are narrowly construed.” Reo v. Allegiance Admrs. L.L.C.,
11th Dist. Lake No. 2017-L-112, 2018-Ohio-2464, ¶ 20, quoting Brown-Spurgeon v.
Paul Davis Sys. of Tri-State Area, Inc., 12th Dist. Clermont No. CA2012-09-069,
2013-Ohio-1845, ¶ 50, citing Glaspell v. Ohio Edison Co., 29 Ohio St.3d 44, 46-47,
505 N.E.2d 264 (1987).
Nonetheless, “courts routinely apply such releases to bar future tort
liability as long as the intent of the parties, with regard to exactly what kind of
liability and what persons and/or entities are being released, is stated in clear and
unambiguous terms.” Brown-Spurgeon at ¶ 51; see also Glaspell at ¶ 46-47 (A
negligence claim is barred by the plaintiff’s valid execution of a release of liability of
future tortious conduct.); Anderson at 114 (Valid exculpatory clauses or releases
constitute express assumptions of risk.); Lamb v. University Hosp. Health Care
Ents., Inc., 8th Dist. Cuyahoga No. 73144, 1998 Ohio App. LEXIS 3740 (Aug. 13,
1998) (clause including word “release” and “negligence” as well as specifically
identifying persons released from liability sufficiently clear to release fitness club
from liability for injuries); Swartzentruber v. Wee-K Corp., 117 Ohio App.3d 420,
424-427, 690 N.E.2d 941 (4th Dist.1997) (language releasing livery stable from “any
and all claims” that arose out of “any and all personal injuries” was sufficiently clear
and specific to bar injured horseback rider’s negligence claims).
On the other hand, where the language of the release is ambiguous or
too general, courts have held that the intent of the parties is a factual matter for the
jury. Hague v. Summit Acres Skilled Nursing & Rehab., 7th Dist. Noble No. 09 NO
364, 2010-Ohio-6404, ¶ 21. “The pivotal inquiry is whether it is clear from the
general terms of the entire contract, considered in light of what an ordinary prudent
and knowledgeable party of the same class would understand, that the proprietor is
to be relieved from liability for its own negligence.” Id. at ¶ 22.
When a writing is clear and unambiguous, the interpretation is a
question of law. Pruitt v. Strong Style Fitness, 8th Dist. Cuyahoga No. 96332, 2011-
Ohio-5272, ¶ 8, citing Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 246,
374 N.E.2d 146 (1978). “Ambiguity exists only when a provision at issue is
susceptible of more than one reasonable interpretation.” Lager v. Miller-Gonzalez,
120 Ohio St.3d 47, 2008-Ohio-4838, 896 N.E.2d 666, ¶ 16. Moreover, we must read
the clauses as a whole, not piecemeal. Gomolka v. State Auto. Mut. Ins. Co., 70 Ohio
St.2d 166, 172, 436 N.E.2d 1347 (1982).
In interpreting contracts, “[c]ourts must give common words their
ordinary meaning unless manifest absurdity would result or some other meaning is
clearly evidenced from the face or overall contents of the written instrument.” JP
Morgan Chase Bank, Natl. Assn. v. Heckler, 3d Dist. Union No. 14-12-26, 2013-
Ohio-2388, ¶ 20, citing In re All Kelley & Ferraro Asbestos Cases, 104 Ohio St.3d
605, 2004-Ohio-7104, 821 N.E.2d 159, ¶ 29. And, although not always explicitly
referenced or relied on, the rules of grammar are elemental whenever reading and
understanding any writing, especially a contract. See Gahanna v. Ohio Mun. Joint
Self-Ins. Pool, 10th Dist. Franklin No. 20AP-265, 2021-Ohio-445, ¶ 12 (“The court
must read words and phrases in context and apply the rules of grammar and
common usage.”).
On appeal, Goss reiterates her position that the Event Release was
“too ambiguous or general to effectively waive the negligent conduct of the
appellees” because it did not expressly notify her that (1) “the race planners were
students with no training, knowledge or experience in race course design and
safety”; or (2) that “the student planners would ignore the recommendations of
[USAC].” Thus, Goss contends that “because of the lack of any specificity regarding
[the term] negligence in the Event Release,” “the lower court erred when it failed to
find that reasonable minds could differ as to whether the unsafe design of the
racecourse by uneducated, untrained and inexperienced students was within the
contemplation of the parties * * * at the time of the execution of the Event Release.”
In support of her position that the Event Release was so general that
it included claims that were not within the contemplation of the parties when it was
executed, Goss relies on the Twelfth District’s decision in Brown-Spurgeon, 12th
Dist. Clermont No. CA2012-09-069, 2013-Ohio-1845, and the Seventh District’s
decision in Hague, 7th Dist. Noble No. 09 NO 364, 2010-Ohio-6404.
In Brown-Spurgeon, plaintiffs Kristina Brown-Spurgeon and Andrew
Spurgeon hired defendant Paul Davis Systems of Tri-State Area, Inc. (“PDS”) to
complete home repairs after their home was flooded in May 2010. At the time PDS
was hired, Kristina signed a “Work Authorization” form that contained an
exculpatory clause. The form provided that PDS would not be liable for theft and
damages arising out of the services performed pursuant to the contract. However,
the clause did allow liability for actions that arise out of the PDS’s sole negligence.
Once the repair-contract was executed, PDS hired Phil Griffin, the
owner of Renovated Solutions, to perform a portion of the remodeling and
restoration work. PDS and Griffin signed a “Tradesperson Agreement,” which
provided that Griffin would conduct background checks on all persons working on
jobs obtained through PDS. Despite these safeguards, however, it was discovered
that a repairman hired by Griffin stole prescription drugs, jewelry, electronics, and
other personal property from the plaintiffs’ home during the repair process. The
value of the stolen items exceeded $18,000.
In May 2011, the plaintiffs filed a lawsuit against PDS and Griffin,
setting forth causes of action for vicarious liability, general negligence, and negligent
hiring and supervision. Subsequently, the trial court granted summary judgment in
favor of PDS and Griffin on each claim.
On appeal, the Twelfth District reversed the trial court’s judgment in
part, finding that there remained genuine issues of material fact as to the plaintiffs’
vicarious liability and general negligence claims against PDS, and the general
negligence and negligent hiring and supervision claims against Griffin. Relevant to
this appeal, the court determined that the exculpatory clause contained in the “Work
Authorization” form did not exempt PDS from liability because (1) the theft involved
“willful or wanton” conduct, and (2) the exculpatory clause expressly contained an
exception for damages that arise directly from the “contractor’s sole negligence.”
Brown-Spurgeon, 12th Dist. Clermont No. CA2012-09-069, 2013-Ohio-1845, at
¶ 54-55.
In Hague, plaintiffs Ruth and Robert Hague filed a negligence and
loss of consortium action against Summit Acres and Summit Acres Skilled Nursing
& Rehabilitation after Ruth was injured on a treadmill at Summit Acres’ fitness
center. Ultimately, the trial court granted summary judgment in favor of the
defendants, finding the negligence claim must be dismissed as a matter of law
because Ruth executed a release from liability form. The release provided, in
relevant part:
I agree that by using the fitness center, I am responsible for my actions.
I agree that summit acres, inc. Is [sic] not liable for any injuries that I
might receive by my use of the fitness center. I have checked with my
doctor about the exercise program I am commencing upon.
On appeal, the Seventh District concluded that the trial court erred in
entering summary judgment in favor of Summit Acres based solely on the release.
The court explained as follows:
Here, the release signed by Ruth does not contain the words, “release”
or “negligence,” and does not identify the individuals, company or
corporation being released from liability. The release simply states that
Summit Acres is not liable for any injuries that Goss might receive “by
[her] use of the fitness center.” “For express assumption of risk to
operate as a bar to recovery, the party waiving his right to recover must
make a conscious choice to accept the consequences of the other party’s
negligence.” [Holmes, 103 Ohio App.3d 364, at 367, 659 N.E.2d 812].
Hence, the release in this case is of the type that have been
characterized by Ohio courts as too ambiguous and general.
Id. at ¶ 28.
After careful consideration, we find Brown-Spurgeon and Hague to
be factually distinguishable from this case. Significantly, unlike the circumstances
presented in Brown-Spurgeon, Goss does not contend that “appellees engaged in
willful or wanton conduct.” Moreover, the Event Release executed in this case did
not include an exception that would permit Goss to pursue a claim for damages
arising from the appellees’ sole negligence. To the contrary, the Event Release
directly contemplates the appellees’ own negligence and required Goss to
acknowledge that she agreed “to waive, release, discharge, hold harmless, and
promise to indemnify and not to sue” the appellees for damages arising from said
negligence.
Similarly, unlike the circumstances presented in Hague, the Event
Release contained the words “release” and “negligence”; and is sufficiently clear and
unambiguous as to both the type of liability being released (negligence) and the
persons being released (event organizers). Here, Goss released the event sponsors
and organizers from all claims arising from their own negligence to the maximum
extent permitted by law, including any and all damages that may be sustained by
Goss directly or indirectly in connection with, or arising out of, her participation in
the cycling event. In this regard, the contract expressly stated that the release
applied to “all races and activities entered at the event,” and further required Goss
to acknowledge that “cycling is an inherently dangerous sport.” By signing the Event
Release, Goss made the conscious choice to accept that she “fully assume[d] the risks
associated with such participation,” including (1) the dangers of collisions with other
riders; (2) the dangers arising from surface hazards, equipment failure, inadequate
safety equipment, or the releasees’ own negligence; and (3) the possibility of a
serious physical injury. Considering these terms collectively and in light of what an
ordinary prudent person would understand, it is clear that the appellees were to be
relieved from liability for any negligence claims relating to their organization of the
cycling event, including pertinent hazards and the design of the racecourse.
Construing the evidence most strongly in Goss’s favor, we find
reasonable minds can come to but one conclusion and that conclusion is adverse to
Goss. Under the doctrine of express assumption of risk, the terms of the Event
Release prohibited Goss from advancing claims of negligence against the appellees.
Accordingly, summary judgment in favor of the appellees was warranted as a matter
of law.1
Goss’s first assignment of error is overruled.
B. Public Policy Concerns
In the second assignment of error, Goss argues the trial court erred by
failing to adopt her argument that Ohio should void broad, nonspecific, ambiguous
1 Although not specifically considered in the state of Ohio, the language contained
in the Event Release generated by USAC has been considered nationally and found to be
an adequate and enforceable release of liability where such releases are permissible. See
Scott v. Altoona Bicycle Club, No. 1426 C.D.2009 (Pa. July 16, 2010) (finding USAC’s
event release is clear and unambiguous and released claims of negligence against event
organizers and affirming the grant of summary judgment); Hellweg v. Special Events
Mgmt., 2011 IL App (1st) 103604, 956 N.E.2d 954, 958, 353 Ill. Dec. 826 (Ill.App.Ct. 2011)
(“This agreement unambiguously absolves defendants of all claims arising out of the event
even if caused by their own negligence.”); Milne v. USA Cycling, Inc., 489 F.Supp.2d
1283, 1287 (D.Utah 2007) (“The Court finds the release to show a clear and unequivocal
expression of an intent to release.”).
waivers of liability as a matter of public policy. Goss contends that by allowing a
premises owner or occupier to obtain broad waivers of their own liability, an
important incentive for the premises owners to maintain their premises in a
reasonably safe condition would be removed, “thus forcing the public to bear the
cost of resulting injuries caused by the [owner or occupier’s] own negligence.”
Generally, in Ohio, exculpatory clauses, which relieve a party from its
own negligence, are not against public policy despite being disfavored in the law.
Papenfuse v. Toledo Area Regional Transit Auth., 6th Dist. Lucas No. L-14-1178,
2015-Ohio-3193, ¶ 6. Thus, “limiting or exculpatory language in a contract will be
enforced unless the language is against important public policy concerns,
unconscionable, or vague and ambiguous.” Morantz v. Ortiz, 10th Dist. Franklin
No. 07AP-597, 2008-Ohio-1046, ¶ 27.
On this record, we are unable to conclude that the Event Release is
void and unenforceable due to an overwhelming public policy concern. On appeal,
Goss does not contend that the Event Release was procedurally or substantively
unconscionable. Moreover, as previously discussed, the Event Release was neither
vague nor ambiguous. Finally, while this court agrees that the duties owed by
premises owners are supported by legitimate interests in protecting the public from
the risk of injury, it is equally true that the concept of freedom to contract is
fundamental to our society. See Hunter v. BPS Guard Servs., 100 Ohio App.3d 532,
552. Similarly, there are significant public policy interests in the promotion and
organization of recreational activities on public lands. In this case, the exculpatory
clause released the event organizers from liability for negligence claims arising from
the cycling event. However, the Event Release did not authorize the appellees to
exercise no care whatsoever. Nor did it permit the appellees to engage in willful or
wanton misconduct. Given these remaining, meaningful protections afforded to the
public, we find no basis to adopt a position that would effectively overturn the well-
established position of this court that “a participant in a recreational activity is free
to contract with the proprietor of such activity as to relieve the proprietor of
responsibility for damages or injuries to the participant caused by the negligence of
the proprietor except when caused by wanton or wilful misconduct.” Lamb, 8th
Dist. Cuyahoga No. 73144, 1998 Ohio App. LEXIS 3740 at 5-6 (Aug. 13, 1998); see
also Pruitt, 8th Dist. Cuyahoga No. 96332, 2011-Ohio-5272, at ¶ 12 (“Although
[plaintiff] claims the release is against public policy, Ohio courts have consistently
held to the contrary.”).
Goss’s second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry
this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
MARY EILEEN KILBANE, P.J., and
MARY J. BOYLE, J., CONCUR