Release Examined for future acts: DAVIS V. 3 BAR F RODEO (COA 11/2/2007)


DATE RENDERED: 11/02/2007

COA reversed and remanded summary judgment order dismissing the claims by Susan Davis and the estate against the Grant County Fair, Inc. (GCF), 3 Bar F Rodeo (3-BFR), Marcus Fannin and Bobby Ray Fannin for the injuries and wrongful death of the administratrix’s husband, Charles.

Specifically, Susan argues the trial court erred by denying her motion for summary judgment based upon the Appellees alleged failure to give her husband the mandatory warning pursuant to KRS 247.4027, which resulted in Charles’ severe internal bodily injuries which ultimately led to his death. 

Summary judgment was not appropriate and the case remanded.

The facts are thus: the announcer for the rodeo, Aaron Platt (Platt), called for participants for a game called the Ring of Fear whereby audience members participate by entering the rodeo ring and standing in marked circles on the ground, at which time, Kenny, the bull, was then released into the ring. The last person standing, without stepping outside of the circle, won the grand prize of $50.00. Charles proceeded to the ring to try his luck in the Ring of Fear.  Susan alleges the bull was angered by someone jabbing him with a wooden object and beating sticks against his cage prior to his release. Once released, the bull proceeded to drive his head into Charles’ abdomen, lifting him off the ground which caused Charles’ liver to burst and he was bleeding internally. Charles faded into temporary unconsciousness next to his wife in the stands. Charles died the next morning with the cause of death ruled blunt trauma to torso and internal bleeding.

Susan then brought a wrongful death action against alleging that their negligence had caused her husbands death. GCF and the other defendants all moved for summary judgment based upon a release signed by Charles prior to his participation in the Ring of Fear.

Susan filed a cross-motion for summary judgment, asserting that the Appellees failed to properly warn of the dangers of the Ring of Fear as required by KRS 247.4027. Susan alleged the Appellees failure to warn was a substantial factor in causing the injuries that led to her husbands death. The trial court granted summary judgment to the Appellees, finding that the release was sufficient to exempt them from liability in light of Hargis v. Baize, 168 S.W.3d 36 (Ky. 2005). The trial court denied Susans cross-motion for summary judgment.

This appeal followed.

Susan argues the Appellees breached their duty to warn pursuant to the Farm Animals Activities Act (FAAA), found in KRS 247.401 through KRS 247.4029 which represents a statutory plan designed to outline the duties and responsibilities of both participants and sponsors conducting animal activities.

Although COA agreed with Susan that the statute applies to this case, the COA noted KRS 247.4027(2)(a) allows for a waiver of liability if the participant signs a release waiving his right to bring an action against the farm animal event sponsor.  If a sponsor of an animal activity does post the suggested warnings found in KRS Chapter 247, he is granted immunity from liability if someone gets hurt. If, as in this case, the warnings are not posted, the sponsor loses the immunity and may be held responsible for the injury in accordance with other applicable law. KRS 247.4013.

Although KRS 247.402 requires farm animal activity sponsors to warn of the inherent risks, there is no duty to reduce or eliminate the inherent risks. However, to intentionally mistreat or aggravate a farm animal would be the antithesis of this duty.  While it is clear that the Appellees did not have warning signs posted at the ring entrance, it is undisputed that Charles signed a release just prior to his participation in the Ring of Fear. Therefore, the central issue in this case is the validity of the release Charles signed.

While agreements to exempt future liability for either ordinary or gross negligence are not invalid per se, they are generally disfavored and are strictly construed against the parties relying upon them. The COA disagreed with the trial court that the release form signed by Charles satisfies all of the factors in Hargis v. Baize, 168 S.W.3d 36 (Ky.2005). The release uses the word negligence. The release does specifically and explicitly release the Appellees from liability for any and all claims and liability arising out of strict liability or ordinary negligence of Releases [Appellees] which causes the undersigned [Charles] injury or death .

The language of the release is specific as to its purpose to exonerate the sponsors from ordinary negligence liability.   However, there is no language that releases Appellees from conduct that would constitute gross negligence. Susan contends that Appellees provoked Kenny by prodding him and beating on his cage prior to his release into the ring.

The intentional provocation of the bull by Appellees to attack the participants is clearly not contemplated by the release. 

While the Appellees dispute the allegations of intentionally mistreating Kenny, if true, it would at the very least constitute gross negligence. The release contemplates getting into the ring with a bull and even mentions that rodeo animals are unpredictable. However, the release does not contemplate a bull that has been infuriated by the Appellees prior to its release into the ring.

This material issue of fact as disputed by the parties can only be resolved by a trier of fact and is not appropriately resolved by summary judgment. Accordingly, COA reversed and remanded this case to the Grant Circuit Court for a jury trial.

Digested by Michael Stevens

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