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concluding that summary disposition was appropriate because the plaintiff had "offered no evidence that the discovery sought could have established that a dispute did indeed exist"
Summary of this case from Saleh v. Safeco Ins. Co.Opinion
Docket No. 192878.
Submitted March 13, 1997, at Detroit.
Decided June 6, 1997, at 9:00 A.M.
Barry F. LaKritz, P.C. (by Barry F. LaKritz), for the plaintiff. Rutledge, Manion, Rabaut, Terry Thomas, P.C. (by David M. Thomas and Lisa Sabon Anstess), for Woodbridge Tavern.
Nemier, Tolari, Landry, Mazzeo Johnson, P.C. (by Gregory A. Light and Michelle Mathieu), for Miller Brewing Company.
Before: SAWYER, P.J., and SAAD and GAGE, JJ.
I NATURE OF THE CASE
May a plaintiff who voluntarily signs a broad, unambiguous release before participating in a personal contact sporting event (in which she is injured) avoid the release by claiming that she did not have time to read it or did not understand what she read? We hold that she may not and therefore affirm the trial court's grants of summary disposition to defendants.
II FACTS
On March 4, 1994, plaintiff and her husband and several friends went to defendant Woodbridge Tavern. That night, defendant Miller Brewing Company (Miller) was sponsoring a "sumo wrestling event" in which the participants were required to wear large "balloon-type" suits and "jockey" helmets, before bouncing against each other in a "circle-type" ring. Plaintiff decided that the wrestling "looked like fun" and she signed up to participate. Plaintiff asked no questions about the nature of the wrestling, the equipment, or the risks involved in wrestling.
When plaintiff's name was called, she was asked to, and did sign, the following release:
LITE BEER
SUMO WRESTLING WAIVER FORM
RELEASE, ASSUMPTION OF RISK INDEMNIFICATION AGREEMENT
Sumo Wrestling Event
Date: 3/4/1994
In consideration of my participation in the above-entitled event, and with the understanding that my participation in sumo wrestling is only on the condition that I enter into this agreement for myself, my heirs and assigns, I hereby assume the inherent and extraordinary risks involved in sumo wrestling, in the use of sumo wrestling suits, and any risks inherent in any other activities connected with this event in which I may voluntarily participate. I expressly assume the risk of and accept full responsibility for any and all injuries (including death) and accidents which may occur as a result of my participation in this event and release from liability Miller Brewing Company, Entertainment Leisure U.S.A., Inc. and Eastown Distributors, Co. and each of their officers, directors, agents, representatives and employees. I hereby waive any claim I may hereafter have as a result of any and all injury to my person or property as a result of my participation in the sumo wrestling event, my use of a sumo wrestling suit, and in any other activities connected with this event in which I may voluntarily participate. I hereby agree to indemnify all of the above-named persons and Miller Brewing Company, for any and all claims, including attorney's fees and costs, which may be brought against any of them by anyone claiming to have been injured as a result of any injury to me or my property which may occur as a result of the sumo wrestling event. I also agree that this release and all its particulars includes Woodbridge Tavern, Inc. I understand that sumo wrestling is a physical sport and that physical injury may result. I certify that I have read and fully understand this release. I am of lawful age and legally competent to make this agreement.
Dated: 3/4/94 Signature: /s/ Address: Witness:
Plaintiff (and her husband) then donned the "sumo suits" and helmets and entered the ring. The object of the match was for one of the wrestlers to knock the other down. The ring was similar to a child's inflatable pool with a lip or ridge around the outer edge. Plaintiff stayed to the outside of the ring to avoid being knocked down, but after wrestling for eight to ten minutes, plaintiff caught her foot on "something" as she backed up. The bulk of the wrestling suit prevented her from catching her footing, and plaintiff fell, damaging her left knee.
The circuit court granted summary disposition to defendants pursuant to MCR 2.116(C)(7) and (C)(10) with regard to plaintiff's personal injury claim.
III ANALYSIS
Plaintiff first asserts that she did not fairly and knowingly sign the release because she was not given time to read it before entering the ring. We disagree. The record makes clear that plaintiff's failure to read the release was caused by her own haste to get in the ring and avoid losing her turn to wrestle, not by defendants' attempts to mislead or defraud her. See Dombrowski v Omer, 199 Mich. App. 705, 709-710; 502 N.W.2d 707 (1993).
Plaintiff also argues that she did not fairly and knowingly sign the release because she did not understand that the release blocked claims against defendants' negligence in maintaining the equipment used in the wrestling matches. Again, we disagree. The release language is not misleading or ambiguous. The language whereby the participant agreed to assume "any risks inherent in any other activities connected with this event in which I may voluntarily participate" and to take responsibility for "any and all injuries (including death) and accidents which may occur as a result of my participation in this event . . ." clearly expressed defendants' intention to disclaim liability for all negligence, including their own. See Skotak v Vic Tanny Int'l, Inc, 203 Mich. App. 616, 619; 513 N.W.2d 428 (1994) ("there is no broader classification than the word `all.' In its ordinary and natural meaning, the word `all' leaves no room for exceptions"); Dombrowski, supra at 711-712. This is not a case where defendants invalidated their release by fraud or misrepresentation. Id. at 710-711.
Next, plaintiff argues that her injury was outside the scope of the release, because it was not caused by contact with another wrestler but by tripping on a ridge in the wrestling mat. We disagree. We have already observed that the release was broad enough to allow defendants to disclaim liability for all negligence. Skotak, supra at 619. Nor does the case cited by plaintiff, Mott v Fraser Investment Group, unpublished opinion per curiam of the Court of Appeals, issued August 25, 1995 (Docket No. 157857), persuade us to construe the release more narrowly. The language of the release in Mott limited the risks accepted by the releasor to those incurred during "participation or observation of the sport," which excluded injuries caused by defective premises. The release at issue here, which covered "any risks inherent in any other activities connected with this event in which I may voluntarily participate," did not exclude injuries caused by defective equipment. In any event, Mott is an unpublished opinion that has no binding precedential effect on our decision. MCR 7.215(C)(1). We hold that the release plaintiff signed was broad enough to bar her claim.
Finally, plaintiff contends that the trial court prematurely granted defendants' motions for summary disposition because at the time the motions were granted, thirty days remained in the discovery period, and plaintiff awaited answers to several discovery requests. We disagree. Plaintiff offered no evidence that the discovery sought could have established that a dispute did indeed exist. See Bellows v Delaware McDonald's Corp, 206 Mich. App. 555, 561; 522 N.W.2d 707 (1994). Plaintiff did not show that acquiring information about the specifications, manufacture, and repair of the wrestling mat and suit used on the night she sustained her injury would further her claims that she signed an invalid release and that her injury was outside the scope of the release. We thus hold that summary disposition was appropriately granted. See Vargo v Sauer, 215 Mich. App. 389, 401; 547 N.W.2d 40 (1996).
Affirmed.
GAGE, J., concurred in the result only.