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Holzer v. Dakota Speedway5/17/2000
instead of a release. Compare Johnson, 514 NW2d at 698 (noting Johnson was told she needed to sign a team roster before she could play on the softball team, when the document was actually a release). Nor was the disclaimer of liability language hidden inconspicuously in the release. See Baker v. City of Seattle, 484 P2d 405, 406-07 (Wash 1971) (holding release invalid when disclaimer was buried in the middle of the agreement and was not conspicuous). The release presented to Holzer contained its critical language in block capital letters in bold print. "In the absence of any concealment of or false representations as to the contents of the release it could be ruled as matter of law that the release was not procured by fraud." Lee, 209 NE2d at 333. Although it is unfortunate Holzer is not able to explain his intent in signing the release, we have not discovered any evidence in the record indicating he was misled, coerced or forced into signing the form.
[ ] 2. Comprehension
[ ] Paul Holzer states in his affidavit that Holzer "was of lower intelligence and [Paul was] unsure whether [Holzer] could even read the release or underst the implications of what he was signing." Paul Holzer further states in his affidavit:
Vernon was a poor student. His reading comprehension was very low. The highest grade he attained in English or Literature was a D+ as a ninth grader. ... Vernon was passed through school, although I do not believe he should have been. He graduated 105th in a class of 110. He had 14 days of absences as a senior ... I always took care to read things to him and explain the writing to insure that he understood what he read, as his comprehension was poor.
[ ] Initially, we must note the language of the release signed by Holzer is unambiguous. "Whether the language of a contract is ambiguous is ordinarily a question of law." Enchanted World Doll Museum v. Buskohl, 398 NW2d 149, 151 (SD 1986) (citing Jensen v. Pure Plant Food International, Ltd., 274 NW2d 261, 264 (SD 1979)). The language in a contract may be said to be ambiguous when "it is reasonably capable of being understood in more than one sense." Id. (citing Ponderosa-Nevada, Inc. v. Venners, 90 SD 579, 243 NW2d 801 (1976); Jones v. American Oil Co., 87 SD 384, 387, 209 NW2d 1, 3 (1973)).
[ ] In Johnson, this Court in ruling a genuine issue of material fact existed as to whether Johnson was aware she was signing a release, recognized "the release did not contain a plain and clear statement directly before the signature lines." 514 NW2d at 698. In the case before us, the release did contain a clear and unambiguous statement immediately before the signature line. The statement provides:
I HAVE READ THIS RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT, FULLY UNDERSTAND ITS TERMS, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND HAVE SIGNED IT FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT, ASSURANCE OR GUARANTEE BEING MADE TO ME AND INTEND MY SIGNATURE TO BE A COMPLETE AND UNCONDITIONAL RELEASE OF ALL LIABILITY TO THE GREATEST EXTENT ALLOWED BY LAW. (capitalization in original).
In addition to this statement, printed on each signature line in bold capitalized letters, is "I HAVE READ THIS RELEASE." Holzer signed his name directly on top of these words.
[ ] This release is not ambiguous. It is direct, simple and cannot be "understood in more than one sense." To hold a reasonable person would not realize the significance of the release signed by Holzer would be to ignore the unambiguous text of the document. Haines v. St. Charles Speedway, Inc., 874 F2d 572, 575 (8th Cir 1989); see also Provence v. Doolin, 41
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