Will this cap or release protect us from our own negligence?
Ohio enforces a clause of this kind but reads it against its drafter unless the bargain was a real one. Clauses limiting the liability of the drafter are ordinarily to be strictly construed, and a court need not construe them strictly where the burden was assented to in a context of free and understanding negotiation between parties presumably possessing a high degree of sophistication in matters of contract, each with the financial power to provide against loss by insurance or other means (Glaspell). A release also has to be shown to have been executed: in Bowen the Supreme Court of Ohio refused summary judgment on a signed release because a question of material fact remained in dispute as to whether the plaintiff properly executed it.
The trap
A release does not reach beyond negligence. The plaintiffs in Bowen contended that the release did not preclude recovery for willful or wanton misconduct, and the Court chose to answer the point rather than leave it for remand: a participant and a proprietor are free to contract so as to relieve the proprietor of responsibility for its own negligence, but not for its willful or wanton misconduct, and the release before the Court, even if properly executed, could only have relieved the proprietor of liability for negligence. Because reasonable minds could differ on whether letting the race continue was negligent or willful and wanton, summary judgment on the release failed on that ground as well. The rest of the trap is the bargaining record rather than the wording: Glaspell's escape from strict construction was earned by facts (commercial enterprises of sufficient size and quality, free negotiation, insurance available), and the same words in a form contract with no realistic opportunity to bargain are the situation Glaspell describes as attracting construction against the party proffering the clause.
8 authorities
The words that state the rule
The parties in the case before us are commercial enterprises of sufficient size and quality as to presumably possess a high degree of sophistication in matters of contract. They all provide services to the general public as their means of producing income and customarily rely on contracts. Each has the financial power to provide against loss by insurance or other means.
The words that state the rule
However, we have just determined that appellees are not entitled to summary judgment on the basis of the Exhibit A release because a question of material fact remains in dispute as to whether Bowen properly executed the release.
The words that state the rule
Thus, while clauses limiting the liability of the drafter are ordinarily to be strictly construed, we need not do so when- such burden of indemnification was assented to in a context of free and understanding negotiation.
The words that state the rule
Appellants also contend that the Exhibit A release does not preclude them from recovering against appellees for willful or wanton misconduct.
The words that state the rule
It has generally been held that a participant in a stock-car race and the proprietor of such activity are free to contract in such a manner so as to relieve the proprietor of responsibility to the participant for the proprietor’s negligence, but not for the proprietor’s willful or wanton misconduct.
The words that state the rule
We find that the Exhibit A release, if properly executed, could only relieve appellees of liability to Bowen for negligence, but not for appellees’ willful or wanton misconduct. Viewing the evidence in a light most favorable to appellants, we believe that reasonable minds can reach differing conclusions as to whether appellees’ failure to timely stop the race, in clear violation of the rules of the event, was either negligent or willful and wanton. Therefore, appellees were not entitled to summary judgment on the basis of the Exhibit A release.
The words that state the rule
Often one party to a contract, being in a position to impose terms upon the other with no realistic opportunity to bargain afforded, would include those standardized clauses in the contract as would unreasonably impose upon the non-bargaining party burdens which were wholly inequitable. With such contracts of adhesion in hand, the drafting party invariably asserted, “the indemnity or the exculpation, so that the policies supporting the rule of ‘contra proferentem’ [against the proffering party], * * * caused the courts to apply the rule.” Corbin on Contracts (1984 Supp., Part 2) 624, Section 1472(E).
The words that state the rule
There is also authority for the proposition that the word “negligence” need not be utilized where an intention to exclude liability predicated upon such is set *48 forth by words excluding liability “for any and all harms however caused.” Corbin on Contracts, supra, at 604, Section 1472; Restatement of Contracts, supra, at 1079-1081, Sections 574 and 575.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.