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Murphy v. N.A.A.R.R
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 1991 Term ___________ No. 20072 ___________ KATHLEEN MURPHY, Plaintiff Below, Appellant v. NORTH AMERICAN RIVER RUNNERS, INC., Defendant Below, Appellee ___________________________________________________ Appeal from the Circuit Court of Fayette County Honorable W. Robert Abbot, Judge Civil Action No. 89-C-631 REVERSED AND REMANDED ___________________________________________________ Submitted: September 18, 1991 Filed: December 12, 1991 D. Clinton Gallaher, IV Fayetteville, West Virginia Attorney for the Appellant Charles E. Hurt Victor A. Barone Charleston, West Virginia Attorneys for the Appellee Michael B. Victorson William C. Porth, Jr. Robinson & McElwee Charleston, West Virginia Attorneys for West Virginia Professional River Outfitters, Inc. Amicus Curiae JUSTICE McHUGH delivered the Opinion of the Court. SYLLABUS BY THE COURT When a statute imposes a standard of conduct, a clause in an agreement purporting to exempt a party from tort liability to a member of the protected class for the failure to conform to that statutory standard is unenforceable. A general clause in a pre-injury exculpatory agreement or anticipatory release purporting to exempt a defendant from all liability for any future loss or damage will not be construed to include the loss or damage resulting from the defendant's intentional or reckless misconduct or gross negligence, unless the circumstances clearly indicate that such was the plaintiff's intention. "A release is construed from the standpoint of the parties at the time of its execution. Extrinsic evidence is admissible to show both the relation of the parties and the circumstances which surrounded the transaction." Syl. pt. 1, Cassella v. Weirton Construction Co., 161 W. Va. 317, 241 S.E.2d 924 (1978). "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. pt. 3, Aetna Casualty & Surety Co. v. Federal Insurance Co., 148 W. Va. 160, 133 S.E.2d 770 (1963). McHugh, Justice:
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The issue in this appeal is whether the trial court, the Circuit Court of Fayette County, West Virginia, properly granted a summary judgment to the defendant on the ground that the anticipatory release executed by the plaintiff was a complete bar to any action by the plaintiff against the defendant for injuries sustained by the plaintiff during a whitewater rafting expedition conducted by the defendant. We believe that the circuit court improperly granted the summary judgment, for the reasons stated below, and, consequently, we reverse and remand. I In August, 1987, the plaintiff-appellant, Kathleen L. Murphy, went whitewater rafting as a paying passenger in a raft owned and operated by the defendant-appellee, North American River Runners, Inc., a licensed commercial whitewater outfitter.1875469244 During this whitewater rafting trip on the New River in Fayette County, West Virginia, the defendant's commercial whitewater guide195737305 operating the raft in which the plaintiff was riding engaged in a rescue operation of another raft owned and operated by the defendant which had become stuck among some rocks in the river rapids. In attempting to dislodge the other raft by bumping it intentionally with the raft in which the plaintiff was riding, the plaintiff was forcefully thrown in her raft, causing, inter alia, serious injuries to one of her knees and one of her ankles. Immediately prior to embarking upon the whitewater rafting trip, the plaintiff had signed a form document entitled "Raft Trip Release, Assumption of Risk & Permission[,]" the pertinent terms of which are set forth in the margin.397355599 After being injured the plaintiff timely brought a personal injury action against the defendant in the trial court, the Circuit Court of Fayette County, alleging that the defendant's guide "negligently, carelessly and recklessly" caused her injuries. (emphasis added) The defendant moved for summary judgment based upon the anticipatory release. The plaintiff moved for partial summary judgment, claiming that such release was void as contrary to public policy, in that commercial whitewater outfitters' activities are regulated by law and, therefore, may not be the subject of such a release. The plaintiff opposed the defendant's motion for summary judgment by filing an affidavit of an experienced whitewater rafting guide whose opinion was that there were reasonable alternatives to the type of rescue operation undertaken here which would have posed no risk of harm to the occupants of the plaintiff's raft. The plaintiff also filed her own affidavit in which she stated that she was not informed in advance of the possibility of rescue operations of other rafts by the intentional "bumping" of them by the raft in which she was riding. In her own affidavit the plaintiff also stated that she never contemplated that the release applied to such intentional acts but only to ordinary negligence in the form of piloting mistakes associated with a "normal trip down the river[.]" The trial court, relying upon the release, granted the defendant's motion for summary judgment and denied the plaintiff's motion for partial summary judgment. II Generally, in the absence of an applicable safety statute, a plaintiff who expressly and, under the circumstances, clearly agrees to accept a risk of harm arising from the defendant's negligent or reckless conduct may not recover for such harm, unless the agreement is invalid as contrary to public policy. Restatement (Second) of Torts

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