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Simkin v. Heil Valley Ranch Inc.3/17/1988
m for willful and wanton negligence. Jones v. Dressel, 623 P.2d 370 (Colo. 1981). However, a common sense reading of this executed release's entire language, see Schutkowski v. Carey, 725 P.2d 1057 (Wyo. 1986), leads me to conclude that, by signing the release, plaintiff acknowledged the possibility of the injury she in fact suffered while riding the Ranch's horse and agreed that the Ranch not be deemed the guardian of her safety. See Hewitt v. Miller, 11 Wash. App. 72, 521 P.2d 244 (Wash. App. 1974); Blide v. Rainier Mountaineering, Inc., 30 Wash. App. 571, 636 P.2d 492 (Wash. App. 1981). Thus, this accident was well within the clear, unambiguous, and express intent of the parties to the release.
Plaintiff's release of "any claim" she may have had against the Ranch arising out of horseback riding clearly recites her intent to release the Ranch from the claims asserted here. Accordingly, use of the talismanic terms "negligence" and "breach of warranty" was unnecessary to render the release effective. See Hewitt v. Miller, supra; see also LeSueur Creamery, Inc. v. Haskon, Inc., 660 F.2d 342 (8th Cir. 1981); Mullan v. Quickie Aircraft Corp., 797 F.2d 845 (10th Cir. 1986); Kleinfeld v. Link, 9 Ohio App. 3d 29, 457 N.E.2d 1187 (Ohio App. 1983).
The majority implicitly reads Jones v. Dressel, supra, to require inclusion of the terms "negligence" and "breach of warranty" in an exculpatory agreement to render it clear and unambiguous and, thus, effective. Jones is not definitive in this regard.
The court's reliance in Jones on use of the term "negligence" to support its conclusion that the release there was valid did not establish "negligence" as the definitive password into the kingdom of exculpability. Rather, the Jones court stressed the importance of the presence of the word "negligence" to buttress its conclusion that the plaintiffs there fully understood the true content and nature of the document they were signing. Contrary to the majoritys' reading of the case, Jones does not establish the word "negligence" as a prerequisite to release from liability.
Moreover, the case of Gross v. Sweet, 49 N.Y.2d 102, 424 N.Y.S.2d 365, 400 N.E.2d 306 (1979), relied upon by the majority to interpret Jones, was cited in that case merely as a source of helpful background information relating to this issue. This is evidenced by the use of the "see generally" signal instead of a "see" signal, or the use of no signal. See A Uniform System of Citation 9 (14th ed. 1986).
I would hold that the language of the release in this case adequately reflects the plaintiff's intent to release the Ranch from liability for her injury and that, thus, the fourth prong of the Jones test is met. Accordingly, I would affirm.
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