Waggoner v. Nags Head Water

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PATSY A. WAGGONER,
Plaintiff-Appellant,
v.
No. 97-1394
NAGS HEAD WATER SPORTS,
INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Elizabeth City.
Terrence W. Boyle, Chief District Judge.
(CA-96-30-2-BO)
Argued: January 27, 1998
Decided: April 6, 1998
Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Edward Francis Halloran, Virginia Beach, Virginia, for
Appellant. Edward James Powers, VANDEVENTER, BLACK,
MEREDITH & MARTIN, L.L.P., Norfolk, Virginia, for Appellee.
ON BRIEF: Michael G. Sweeney, Virginia Beach, Virginia, for
Appellant. R. John Barrett, VANDEVENTER, BLACK, MEREDITH
& MARTIN, L.L.P., Norfolk, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Patsy Waggoner rented a jet ski from Nags Head Water Sports for
herself and her daughter. As part of the rental agreement, she signed
a waiver that purported to release Nags Head from"all claims . . . that
may arise from [her] use of the craft." Waggoner was injured while
riding on the jet ski and sued, alleging that Nags Head negligently
maintained and operated the watercraft. The district court dismissed
the suit on the grounds that it was barred by the waiver, and Wag-
goner appealed.
This case arises under our admiralty jurisdiction, 28 U.S.C. § 1333,
and is governed by principles of maritime law. See Jerome B. Gru-
bart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 543
(1995) (noting that maritime law applies to "the navigation or berth-
ing of pleasure boats, despite the facts that the pleasure boat activity
took place near shore, where States have a strong interest in applying
their own tort law, or was not on all fours with the maritime shipping
and commerce that has traditionally made up the business of most
maritime courts"); Richards v. Blake Builders Supply Inc., 528 F.2d
745, 749 (4th Cir. 1975).
I. BACKGROUND
On September 26, 1993, Patsy A. Waggoner, the plaintiff, rented
a personal water craft (a jet ski) from the defendant Nags Head Water
Sports, Inc. As part of the rental agreement, she signed a pre-printed
form titled "Rental Agreement/Waiver." The bottom of the form con-
tained an exculpatory clause which read:
WAIVER AND ASSUMPTION OF RISKS: I Pat
Waggoner voluntary [sic] with knowledge, assume all risk
of accident or damages to my person, my passenger of[sic]
2
property which may be incurred from or be connected in any
manner with my use, operation or rental of the craft checked
above. I hereby release Nags Head Watersports, Inc., it's
[sic] agent and emplorees[sic] from all claims, demand,
actions, cause of action, and from all liability for damages,
losses or injuries that may arise from my use of the craft
checked above, including but not limited to attorney's fees.
This release and indemnification shall be binding upon my
heirs, Administrators, executors and assigns.
CUSTOMER SIGNATURE (Lessee)[signed]
According to Waggoner's affidavit, she did not understand that form
to allow the defendant to escape liability for its own wrongdoing.
Waggoner rented a single-seated jet ski for her daughter to ride,
and a two-seated jet ski for her other daughter which Waggoner and
she were to ride together. As the first daughter rode around on the
single-seated jet ski, Waggoner claims, the defendant's attendant had
difficulty starting the second jet ski. It stalled in attempts to start it,
smelled strongly of gas, left a rainbow-colored film on the water, and
"made a lot of smelly smoke."
Waggoner was able to ride on the two-seated jet ski, with her
daughter driving, for "one loop, or about one and one-half city
blocks." While that loop progressed, the two-seated jet ski would only
go very slowly and allegedly did not respond proportionately to the
use of the throttle. Suddenly the jet ski "accelerated with terrific speed
and threw [Waggoner and her daughter] off the back." Waggoner sus-
tained a compression fracture to her vertebra during the fall.
Waggoner sued Nags Head in admiralty, asserting, inter alia, that
the injury was due to a malfunction of the jet ski caused by its negli-
gent maintenance. The district court granted summary judgment for
Nags Head on the basis that the exculpatory clause signed by Wag-
goner barred her claim. Waggoner appeals.
II. DISCUSSION
Although Waggoner had some trouble complying with Rule 56(e)'s
requirements for opposing a Motion for Summary Judgment, she may
3
have managed to allege sufficient evidence to make out a claim for
negligence, but not for gross negligence or recklessness. As the
appeal is from a grant of summary judgment, we view the facts in the
light most favorable to the non-moving party. See Halperin v. Abacus
Technology Corp., 128 F.3d 191, 196 (4th Cir. 1997). However, the
plaintiff "may not rest upon the mere allegations or denials of [her]
pleading, but [her] response, by affidavits or as otherwise provided in
[Rule 56(e)], must set forth specific facts showing that there is a gen-
uine issue for trial." Fed. R. Civ. P. 56(e).
A. Waggoner's Response to the
Summary Judgment Motion
On October 25, 1996, Nags Head served a motion for summary
judgment on Waggoner's attorneys. The docket records the motion as
having been filed on October 8, 1996. According to Rule 4.05 of the
Local Rules of Practice and Procedure of the U.S. District Court for
the Eastern District of North Carolina, a party has 20 days after the
service of a motion to file a written response. Waggoner failed to
respond within the allotted 20 days. Instead, on November 29, 1996,
Waggoner filed a "rough draft" of a Brief in Opposition to the Motion
for Summary Judgment. On December 5, 1996, she filed a "final
draft" of that Brief. Neither brief contained any sworn affidavits or
other evidence demonstrating that there was a genuine issue for trial.
After Nags Head filed a Reply Brief in support of its summary
judgment motion, Waggoner filed a Response to the Reply Brief
along with her affidavit. However, Nags Head asserts that it
has never received copies of these documents, and only
became aware of their existence during this appeal upon
receipt of the district court's docketing statement. Nags
Head was first provided with an unsigned1 copy of Plain-
tiff's Affidavit when counsel for [Waggoner] delivered a
copy of the Joint Appendix filed herein.
_________________________________________________________________
1 While it is true that the affidavit provided in the Joint Appendix is
unsigned (marked "file copy"), the record contains the original, signed
and notarized, affidavit.
4
Brief of Appellee at 5 n.2.
A district court has discretion to consider a late affidavit if it
chooses to do so. See Orsi v. Kirkwood, 999 F.2d 86, 91 (4th Cir.
1993) (citing Fed. R. Civ. P. 6). A court should generally allow such
an exception "only if cause or excusable neglect has been shown by
the party failing to comply with the time provisions." Id. Waggoner
has offered us no excuse for, nor even mentioned, her delay and we
cannot tell whether she provided such excuse to the district court. In
fact, we cannot tell from the district court's order whether it chose to
consider Waggoner's affidavit or not. Since Waggoner's claim was
properly dismissed in any event, we have assumed, arguendo, that we
may consider her affidavit.
In addition to the affidavit, Waggoner filed two"expert state-
ments," neither notarized nor accompanied by authenticating affida-
vits. "To be admissible at the summary judgment stage, ``documents
must be authenticated by and attached to an affidavit that meets the
requirements of Rule 56(e).'" Id., at 92 (quoting 10A Charles A.
Wright et al., Federal Practice and Procedure § 2722, at 58-60 (1983
& 1993 Supp.)). The unsworn "expert statements," even if they had
been submitted on time, are hearsay and we may not consider them
in evaluating the summary judgment motion. See Rohrbough v. Wyeth
Laboratories, Inc., 916 F.2d 970, 974 n.8 (4th Cir. 1990).
Without the "expert statements," there is no evidence in the record
supporting Waggoner's claim that Nags Head was grossly negligent
or reckless in its maintenance of the jet skis. Therefore, the two
claims were properly dismissed on summary judgment. Even if we
accept Waggoner's affidavit, however, she may not have alleged suf-
ficient evidence to support a claim for ordinary negligence, because
much of the affidavit is inadmissible hearsay.
B. By Its Terms, the Exculpatory Clause Bars
Waggoner's Claim
Even assuming that Waggoner had attested to sufficient evidence
to make out a general claim for negligence, however, the exculpatory
clause here at issue bars her suit. It is true that"[a]s a general rule of
contract law, contracts releasing a party from liability resulting from
5
his own negligence are looked upon with disfavor, and are strictly
construed against the releasee." Krazek v. Mountain River Tours, Inc.,
884 F.2d 163, 165 (4th Cir. 1989) (citing Newport News Shipbuilding
and Dry Dock Co. v. United States, 226 F.2d 137, 142 (4th Cir.
1955)). Yet, the exculpatory clause here is conspicuous and unambig-
uous.
The exculpatory clause that Waggoner signed is titled, in all capital
letters, "WAIVER AND ASSUMPTION OF RISKS." Her attention
was drawn to it, as illustrated by the facts that she had to write her
name in the first sentence of the clause and that she signed the docu-
ment immediately below the clause.
The exculpatory clause states that Waggoner "assume[s] all risk of
accident or damages to [her] person . . . which may be incurred from
or connected in any manner with [her] use, operation or rental" of the
craft. (Emphasis added.) The injury to her back resulting from her fall
off of the jet ski was clearly a damage to her person connected with
her use of the craft. By signing the clause, therefore, Waggoner
assumed the risk of this accident.
Furthermore, the clause recites that its signator"release[s]" Nags
Head from "all claims, demand, actions, cause of action, and from all
liability for damages, losses or injuries that may arise from [her] use
of the craft." (Emphasis added.) Waggoner's claim for negligence is
clearly included within the category of "all claims" and "all liability
for . . . injuries." Her injury, even if it was the fault of the negligence
of Nags Head, arose from her use of the craft. By signing the clause,
therefore, Waggoner released Nags Head from this claim.
Waggoner has argued that the exculpatory clause does not bar an
action for negligence because it does not expressly state the word
"negligence." But the term "all claims" must doubtless include a claim
for negligence.2 Although it applied West Virginia law, the decision
_________________________________________________________________
2 We need not answer the question whether such a waiver could extend
to gross negligence or recklessness on Nags Head's part or whether con-
siderations of public policy would void the waiver in those circum-
stances, since gross negligence or recklessness has not been adequately
demonstrated to survive summary judgment.
6
in Krazek provides useful guidance here. In that case a woman injured
during a white-water rafting trip sued the rafting company. We held
that a broad exculpatory clause that did not specifically mention the
word "negligence" was sufficient to bar a claim for negligence:
The second paragraph of the release, however, clearly
waives Ms. Krazek's right to assert any claim of any kind
or nature whatsoever. This language is obviously sufficient
to waive a negligence action. To hold otherwise would
create a requirement that to bar negligence claims all
releases must include the words "negligence" or "negligent
acts." We decline, however, to formulate a rule that requires
the use of specific "magic words" in contracts such as this
one.
Krazek, 884 F.2d at 166. The United States Supreme Court has simi-
larly declined to hold that the express mention of the word "negli-
gence" is necessary to limit liability for negligent acts, at least in a
case regarding an indemnification contract between sophisticated par-
ties. See United States v. Seckinger, 397 U.S. 203, 213 n.17 (1970)
("We specifically decline to hold that a clause that is intended to
encompass indemnification for the indemnitee's negligence must
include an ``indemnify and hold harmless' clause or that it must
explicitly state that indemnification extends to injuries occasioned by
the indemnitee's negligence.").
Waggoner further has argued that because the waiver only applies
to claims arising from her use of the watercraft, it does not bar this
action which resulted from the defendant's negligence. Instead, she
asserts that the clause was "clearly intended to apply to the Plaintiff's
causing injury or property damage to third parties by virtue of her use
of the craft." Brief of Appellant at 25. However, a waiver signed by
Waggoner that limited Nags Head's liability for damages caused by
Waggoner negligently injuring third parties would have no legal
effect. Waggoner can only waive claims that she possesses, and she
could only have any claims against Nags Head if it had been negli-
gent, not if she were negligent.
Waggoner's argument that the waiver should not be construed to
cover gross negligence or reckless conduct is on stronger ground --
7
courts have held that public policy forbids the avoidance of liability
for gross negligence in these circumstances. But there is no genuine
issue of gross negligence or recklessness in this case, since we may
not consider the unsworn statements of her "experts." The failure
properly to maintain the jet ski may have been negligent, but Wag-
goner has offered no evidence that it so far exceeded the bounds of
proper care as to constitute gross negligence or recklessness.
In sum, the exculpatory clause, by its terms, bars Waggoner's suit.
C. Public Policy Does Not Bar Enforcement
of the Exculpatory Clause
Waggoner argues that the exculpatory clause should not be
enforced because it violates the policies of admiralty law, North Caro-
lina law, and general contract principles found in the Restatement. We
disagree.
1. Admiralty Principles
Although Waggoner can point to no specific policy or statute of
admiralty law that would render unenforceable the exculpatory clause
that she signed, she argues that the Limitation of Liability Act, 46
U.S.C. App. §§ 181 - 196, "if not in its letter, in its spirit, would bar
enforcement of the Defendant's exculpatory clause." Brief of Appel-
lant at 36. The Limitation of Liability Act limits the liability of a ves-
sel owner for property damage or injury due to collision or other
accident at sea to the value of the vessel plus its cargo. 46 U.S.C.
§ 183(a). Section 183c of that Act prohibits a vessel owner from fur-
ther limiting its liability for negligence when transporting passengers
from port to port. That section provides:
(a) Negligence
It shall be unlawful for the manager, agent, master, or
owner of any vessel transporting passengers between ports
of the United States or between any such port and a foreign
port to insert in any rule, regulation, contract, or agreement
any provision or limitation (1) purporting, in the event of
8
loss of life or bodily injury arising from the negligence or
fault of such owner or his servants, to relieve such owner,
master, or agent from liability, or from liability beyond any
stipulated amount, for such loss or injury . . . . All such pro-
visions or limitations contained in any such rule, regulation,
contract, or agreement are declared to be against public pol-
icy and shall be null and void and of no effect.
46 U.S.C. App. § 183c(a) (emphasis added).
Although the Act as a whole applies to pleasure craft, Richards v.
Blake Builders Supply Inc., 528 F.2d 745, 748-49 (4th Cir. 1975),
including jet skis, Keys Jet Ski, Inc. v. Kays , 893 F.2d 1225 passim
(11th Cir. 1990), this section is limited by its terms to common carri-
ers. The limitation reflects the principle that it is against public policy
for a common carrier to attempt to limit its liability for its own negli-
gence. See Santa Fe, Prescott & Phoenix Ry. Co. v. Grant Bros.
Constr. Co., 228 U.S. 177, 184 (1913) ("It is the established doctrine
of this court that common carriers cannot secure immunity from lia-
bility for their negligence by any sort of stipulation."). This restriction
on freedom of contract is justified by the need to"secure the utmost
care in the rendering of a service of the highest importance to the
community." Id. at 184-85. Furthermore, the Court "recognized that
the carrier and the individual customer are not on an equal footing":
in most cases the individual has no choice but to accept the terms
offered by the carrier or forgo its essential service. Id. at 185.
That policy has no application where the defendant is not acting as
a common carrier, however. See id. "In such a case, it is dealing with
matters involving ordinary considerations of contractual relation;
those who choose to enter into engagements with it are not at a disad-
vantage; and its stipulations even against liability for its own neglect
are not repugnant to the requirements of its public service." Id.; Kerr-
McGee Corp. v. Law, 479 F.2d 61, 64 (4th Cir. 1973) (holding that
parties to contract of private carriage were free under admiralty law
"to make whatever contractual allocation of risk they desired").
Nags Head was not acting as a common carrier. It was not engaged
in "transporting passengers between ports of the United States or
between any such port and a foreign port." 46 U.S.C. App. § 183c. No
9
port has been mentioned, which suggests that support is lacking for
Waggoner's argument. Rather it was providing recreational services,
"which are not embraced within its duty as a common carrier although
their performance may incidentally involve the actual transportation
of persons and things, whose carriage in other circumstances might
be within its public obligation." Santa Fe, Prescott & Phoenix Ry.
Co., 228 U.S. at 185. The policy of admiralty law expressed in 46
U.S.C. App. § 183c, therefore, does not invalidate the exculpatory
clause at issue.
2. North Carolina Law
It is unclear to what extent North Carolina law applies to this case.
First, Nags Head asserts that Waggoner never pled any cause of
action arising under North Carolina law, but rather relied exclusively
on maritime law before the district court, and so may not raise issues
of North Carolina law on this appeal. See Brief of Appellee at 4 n.1.
However, Waggoner's complaint accused Nags Head of numerous
acts of negligence, including negligence in hiring inexperienced
employees in its rental business. Such negligence clearly sounds in
North Carolina law, although it may sound in maritime law as well.
Furthermore, where maritime law applies, state law is often dis-
placed. "[I]n several contexts, [the Supreme Court has] recognized
that vindication of maritime policies demanded uniform adherence to
a federal rule of decision, with no leeway for variation or supplemen-
tation by state law." Yamaha Motor Corp., U.S.A. v. Calhoun, 116 S.
Ct. 619, 626 (1996). The requirement of uniformity is not absolute,
however. See American Dredging Co. v. Miller, 510 U.S. 443, 451
(1994). "[I]t would be difficult, if not impossible, to define with
exactness just how far the general maritime law may be changed,
modified, or affected by state legislation." Id. (quoting Southern
Pacific Co. v. Jensen, 244 U.S. 205, 216 (1917)) (internal quotation
marks omitted) (alteration in original).
Luckily, in this case the same policies recognized by the maritime
law are recognized in North Carolina law. "Under North Carolina
law, parties are free to allocate the risk of injury by means of exculpa-
tory contracts, unless the subject matter of such contracts affects a
public interest." Bertotti v. Charlotte Motor Speedway, 893 F. Supp.
10565, 566 (W.D.N.C. 1995). Although North Carolina courts assert
that "[r]eleases which exculpate persons from liability for negligence
are not favored by the law," Johnson v. Dunlap, 280 S.E.2d 759, 763
(N.C. Ct. App. 1981), except in specific circumstances they "re-
cogniz[e] the right to contract against liability," Alston v. Monk, 373
S.E.2d 463, 466 (N.C. Ct. App. 1988).
North Carolina courts will enforce an exculpatory clause unless it
is violative of a statute, gained through inequality of bargaining
power, or contrary to a substantial public interest. See Andrews v.
Fitzgerald, 823 F. Supp. 356, 378 (M.D.N.C. 1993); see generally
Hall v. Sinclair Refining Co., 89 S.E.2d 396, 397-98 (N.C. 1955) (dis-
cussing the general rule that parties may contract to allocate the risk
of their own negligence, and the circumstances under which such con-
tracts will be held void). Although Waggoner asserts that the instant
exculpatory clause falls within all three of these categories, she is
mistaken.
First, Waggoner directs our attention to the North Carolina Boating
Safety Act, N.C. Gen. Stat. § 75A-1 to -19 (1994). Although this stat-
ute explains that it is the policy of North Carolina to promote boating
safety, its terms deal almost exclusively with the operation of water
craft and do not address the duties owed by one who rents such craft
for recreational use. The closest provision is section 75A-8, which
provides that:
It shall be unlawful for the owner of a boat livery to rent a
vessel to any person unless the provisions of this Chapter
have been complied with. It shall be the duty of owners of
boat liveries to equip all vessels rented as required by this
Chapter.
However, Waggoner does not assert that there has been any violation
of this provision, nor do we find that there has been any such viola-
tion. Waggoner merely asserts that the statute as a whole exhibits a
policy toward promoting boating safety. This is a far cry from a pro-
hibition of exculpatory clauses in recreational rental agreements.
Waggoner further has asserted that she suffered from an inequality
in bargaining power because the contract was an adhesion contract.
11
It is true that Waggoner could not negotiate the terms of the contract,
but either had to sign the exculpatory clause or decline to rent the jet
ski; however, this supposed "inequality of bargaining power . . . is
more apparent than real. It is not different from that which exists in
any other case in which a potential seller is the only supplier of the
particular article or service desired." Gas House, Inc. v. Southern Bell
Tel. and Tel. Co., 221 S.E.2d 499, 505 (N.C. 1976), overruled on
other grounds, State ex rel. Utilities Comm'n v. Southern Bell Tel.
and Tel. Co., 299 S.E.2d 763 (N.C. 1983). Only where "it is necessary
for [the plaintiff] to enter into the contract to obtain something of
importance to him which for all practical purposes is not obtainable
elsewhere" will "unequal bargaining power" void an exculpatory
clause. Hall, 89 S.E.2d at 398.
Waggoner has cited Hill v. Carolina Freight Carriers Corp., 71
S.E.2d 133 (N.C. 1952), for the proposition that a release "will never
be so construed as to exempt the indemnitee from liability for his own
negligence or the negligence of his employees in the absence of
explicit language clearly indicating that such was the intent of the par-
ties." Id. at 137. In that case the North Carolina Supreme Court held
that an exculpatory clause purporting to cover "all losses" did not
extend to losses caused by the negligence of the defendant, because
it would be against public policy for a common carrier to be allowed
to indemnify itself against its own negligence. Both North Carolina
law and admiralty law recognize such a public policy regarding com-
mon carriers. However, Nags Head was not a common carrier and no
similar public policy protects Waggoner from the plain language of
her contract.
Finally, Waggoner has contended that the regulation of recreational
boat rentals is infused with a public interest, and thus the exculpatory
clause should be held invalid.3 However, North Carolina courts have
not held that recreational boat renting, as opposed to the services of
_________________________________________________________________
3 Waggoner has asserted that this clause is one for a public service
because it is a bailment. The argument is meritless. Waggoner fails to
appreciate the difference between a bailment and a lease, and in any case
the rule regarding bailment only prohibits the limitation of liability of a
bailee when entrusted with property of the bailor, whereas in this case
Waggoner would have been the bailee and Nags Head the bailor.
12
a common carrier, is sufficiently important to justify such an imposi-
tion on the freedom of contract. As the Supreme Court of North Caro-
lina has explained:
The reason for the rule that a common carrier, or other
public utility, may not contract away its liability for negli-
gence in the performance of its public utility service and
may not claim the benefit of an unreasonable contract limit-
ing the amount of its liability therefor, is that every member
of the public is entitled by law to demand such service with
full liability at a reasonable rate therefor. For the company
to refuse to serve unless the customer agrees to release it
from liability for its negligent performance of its obligation
to serve would be a denial of this legal right in the would-
be customer. Thus, such a contract limiting the liability of
the carrier, or other public utility, unless reasonable, is con-
trary to public policy and invalid. This limitation upon the
right of the common carrier, or other public utility, to con-
tract applies, however, only to its undertakings to render ser-
vices which fall within its public service business.
Gas House, Inc., 221 S.E.2d at 505. See also Bertotti, 893 F. Supp.
at 569 (explaining that the public interest exception only applies to
heavily regulated industries such as medicine and cosmetology, not
recreational go-kart racing).
3. Restatement (Second) of Contracts
The Restatement (Second) of Contracts does not suggest that the
exculpatory clause at issue here should be invalidated. The relevant
provision states, in pertinent part:
(1) A term exempting a party from tort liability for harm
caused intentionally or recklessly is unenforceable on
grounds of public policy.
(2) A term exempting a party from tort liability for harm
caused negligently is unenforceable on grounds of public
policy if
13
(a) the term exempts an employer from liability to an
employee for injury in the course of his employment;
(b) the term exempts one charged with a duty of public
service from liability to one to whom that duty is owed for
compensation for breach of that duty, or
(c) the other party is similarly a member of a class pro-
tected against the class to which the first party belongs.
Restatement (Second) of Contracts § 195 (1979). There is no evi-
dence in the record to support the assertion that Nags Head acted
intentionally or recklessly, there is no employer/employee relation-
ship, no "duty of public service" (as would be the case if Nags Head
were a common carrier, see id. at § 195 cmt. a), and Waggoner is not
a member of any class protected against recreational boat rental com-
panies. This case instead falls within the Restatement's explanation
that "a party to a contract can ordinarily exempt himself from liability
for harm caused by his failure to observe the standard of reasonable
care imposed by the law of negligence." Id.
III. CONCLUSION
Because Waggoner may not have demonstrated any admissible evi-
dence of negligence sufficient to withstand Nags Head's summary
judgment motion, and because, even if she had, her negligence claim
would be barred by the exculpatory clause that she signed, the judg-
ment of the district court is
AFFIRMED.
14