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Dailey v. Sports World South9/30/2003
ors, and assigns, assume all risk whatsoever of personal injury or death or property damage or loss in connection with or arising out of or resulting from any or all parachuting or skydiving activities engaged in by me, and absolve and release said St. Croix Valley Skydiving Club, Inc., its officers and members, of and from all liability thereof, and further, I do hereby convent and agree for myself, my heirs, executors, administrators, and assigns, not to sue, arrest, attach, or prosecute said St. Croix Valley Skydiving Club, Inc., its officers and members for or on account of any such personal injury or death or property damage or loss, it being my express intent and purpose to bind myself, my heirs, executors, administrators, and assigns hereby.
Malecha, 392 N.W.2d at 728. The court determined, " ven though the agreement is unnecessarily wordy, it is susceptible to only one reasonable interpretation." Id. at 729. It then released respondent from liability for negligence only. Id. at 732. The court also acknowledged that "some of the language in the agreement could be construed to extend beyond acts of negligence," but reasoned that the agreement in Schlobohm also included broad language. Id. at 729. Thus, the Malecha court upheld the release as a valid exculpatory agreement. The court also noted that, like the plaintiff in Schlobohm, the plaintiff in Malecha alleged only that the skydiving club had been negligent and did not allege any damage from intentional or willful acts. Id. at 730.
We apply the same interpretation here. Appellant contends that some of the language contained in the release is an attempt by respondents to escape liability for intentional, willful, or wanton acts. We conclude, however, that based on Schlobohm and Malecha, the only reasonable interpretation of the language in this release is that it exonerates respondents from liability for acts of negligence only. Moreover, appellant has not alleged any claims resulting from intentional or willful acts.
Appellant relies primarily on Nimis v. St. Paul Turners, 521 N.W.2d 54 (Minn. App. 1994) for support that the release should not be enforced. In Nimis, the plaintiff agreed to release the defendant from liability for injuries "caused or alleged to be caused in whole or in part by the negligence of the... [defendant] or otherwise." Id. at 57. The court commented that the language "or otherwise" caused the agreement to be ambiguous as to whether it released the defendant for injuries caused intentionally. Id. at 58. But the court's comment regarding the ambiguity of the release was not the deciding issue in the case; therefore, the comment was dicta. See K.R. v. Sanford, 588 N.W.2d 545, 548 (Minn. App. 1999) (stating that dicta are expressions in an opinion that go beyond the facts of the case), aff'd, 605 N.W.2d 387 (Minn. 2000). The court ultimately concluded that the plaintiff was not subject to any waiver at the time of her injury because it had expired at the termination of the underlying contract. Nimis, 521 N.W.2d at 58. Thus, Nimis is not controlling here.
2. Ambiguous scope
Whether an agreement is ambiguous is a question of law that this court reviews de novo. Blattner, 322 N.W.2d at 321. Appellant argues that the scope of the release is ambiguous because Tabriz did not knowingly or intentionally waive his right to receive supervised instruction from a competent instructor or competent buddy. The district court determined that these are claims for negligence arising out of participation in the diving class that are within the scope of the release. We agree.
The release signed by Tabriz provides that neither the instructors nor the facility may be held liable for
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