Boston Personal Injury Attorney Blog
Case: Markovitz v. Cassenti, August 18, 2016, Massachusetts Supreme Judicial Court
Brief Fact Summary: A woman who fell off a horse during a riding lesson in 2011 filed a Massachusetts personal injury lawsuit against the farm that provided the lessons. The trial court granted defendant’s request for summary judgment on grounds plaintiff signed a waiver of liability prior to beginning lessons, more than a year before her fall. Plaintiff appealed, arguing she was entitled to relief under M.G.L. c. 128 § 2D (c)(1)(ii), which she asserted created a new duty of care – in addition to those that already exist under common law – that precluded the waiver of liability. Alternatively, she argued a question of fact remained as to whether defendant committed gross negligence, which would have allowed her to sidestep the waiver, per the precedent set in the 1997 case of Zavras v. Capeway Rovers Motorcycle Club, Inc.
Synopsis of Rule of Law: Massachusetts courts have generally upheld waivers of liability and release agreements that immunize defendants from future liability for negligent acts – particularly for cases related to sports and recreation. This precedent was first set in 1965 with the Massachusetts Supreme Judicial Court case of Lee v. Allied Sports Assocs., Inc., a car race track accident. Successful challenges to releases from liability, which are issued via summary judgment, are generally done on the grounds that the waiver was unclear or ambiguous. In order for such waivers to be binding, defendants have show the language was clear and conspicuous, all parties were properly named, the party in question (or his/ her guardian or legal representative) signed the waiver and that there was a valid contractual consideration. That last part means something of value was exchanged. In the Zavras case, the state high court ruled that while a party may contract against liability for harm caused by its own negligence, it may not do so with respect to harm caused by gross negligence or harm caused by a violation of statutory duty. Meanwhile, M.G.L. c. 128 § 2D (c)(1)(ii) indicates that while equine activity sponsors can’t be held liable for an injury or death resulting from the inherent risks of equine activities, these parties can be held liable if they provided the horse and failed to make reasonable and prudent efforts to determine both the ability of the participant to safely engage in the activity.
Facts: This Massachusetts injury lawsuit stemmed from an horse riding accident during an equine riding lesson in Rowley, about 45 minutes north of Boston. Plaintiff began the lessons in July 2009 and continued taking them until the accident, in January 2011. When she first began lessons, she signed a waiver of liability release, indicating she understood the inherent risks of injury involved in horseback riding and in being around horses in general. She further indicated that in participating in lessons at the farm, she personally assumed any and all such risk of injury and voluntarily released the farm, owners, instructors, employees and other agents from any injury she might sustain while on the premises and/ or participating in activities. Further, she agreed to indemnify and hold harmless the farm and all others associated with it. For one-and-a-half years, she took these riding lessons without incident. On her last four rides, she took out a horse that was characterized as “sweet” by the farm owner. However, the horse did disobey plaintiff on a couple of occasions. On the fourth occasion, the horse threw plaintiff from her saddle, causing her injury. Plaintiff filed a personal injury lawsuit against the farm for her injuries. However, the lower court granted summary judgment, citing the waiver of liability. Plaintiff appealed, arguing she should be allowed to proceed despite the waiver of liability pursuant to M.G.L. c. 128 § 2D (c)(1)(ii).
Issue: Does M.G.L. c. 128 § 2D (c)(1)(ii) create a separate duty of care that precludes plaintiff’s signature on that liability waiver? Is there evidence the farm/ equine activity sponsor acted with gross negligence such that the court should reverse summary judgment for the defendant and allow plaintiff to continue with her claim?
Held: No, on both issues. M.G.L. c. 128 § 2D (c)(1)(ii) , rather than create a new duty in addition to those that already exist, provides an exception to the overall prohibition on liability that is established by statute. It allows plaintiff to proceed with negligence claims stemming from personal injuries only in limited circumstances. Because the statute doesn’t create new duties on the part of the horse professional, the plaintiff can’t use it to set aside the waiver of liability she signed. The court ruled this case is distinguishable from outcome of Pinto v. Revere-Saugus Riding Academy Inc. in 2009 because in that case, there was no signed release of liability. As to the issue of gross negligence, which was defined in the 1919 case of Altman v. Aronson, is when there is, “materially more want of care than constitutes simple inadvertence.” It’s not simply the absence of slight diligence or want of scant care. It amounts to indifference to the legal duty and utter forgetfulness of one’s legal obligations. The court ruled even when viewing the case in light most favorable to plaintiff, she couldn’t make a case for that here against defendant. Thus, the summary judgment for defense was upheld.
Discussion: Waivers of liability are increasingly common for a wide range of activities, from participating in a bike-a-thon to learning how to rock climb to a child engaged in end-of-school “field day” festivities. Often, this language is broad and it includes the total release of the defendant from any responsibility for injuries, even if the defendant was negligent. Most of the time, these agreements are legal and they are upheld, as the Markovitz case shows. However, there may be some important exceptions, particularly if the release goes against public policy or the language is ambiguous. This is why you should always discuss these matters with an experienced Boston personal injury lawyer.
If you have suffered personal injury in Massachusetts, call Jeffrey Glassman Injury Lawyers for a free and confidential appointment — (617) 777-7777. (function(){
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