Exculpatory release is clear, valid and enforceable to preclude negligence liability.

Provoncha v. Vermont Motocross Assn. 2009 VT 29 (Skoglund, J.)(Johnson, J., dissenting.)

Heidi and Clint Provoncha appeal from the Orleans County Superior Court’s grant of summary judgment in favor of Vermont Motocross Association (VMA). The Provonchas filed suit alleging negligence in connection with injuries Mr. Provoncha sustained while participating in a motocross event sponsored by VMA. The superior court ruled that the “Race Day Entry Form,” which Mr. Provoncha signed the day before the event, operated as a waiver of the negligence claim. The form releases VMA "from liability, loss, claims, and demands that may accrue from any loss, damage or injury, including paralization and/or death to my person or property, in anyway arising while engaged in competition or in practice or preparation therefore, or while entering or departing the premises, from any cause what so ever." The Provonchas contend on appeal that the Race Day Entry Form does not release VMA from liability because: (1) it is not sufficiently clear as required by our decision in Thompson v. Hi Tech Motor Sports, Inc., 2008 VT 15, ___ Vt. ___, 945 A.2d 368; and (2) it violates public policy. We affirm the superior court’s grant of summary judgment.

The question of whether the Race Day Entry Form at issue in this case was sufficiently clear to release VMA and Driver from liability for negligence is governed by Douglass v. Skiing Standards, Inc., 142 Vt. 634, 459 A.2d 97 (1983) (release was sufficiently clear for purposes of exculpating ski area from negligence liability notwithstanding its failure to include the word “negligence” in its terms.) We recently reaffirmed Douglass in Thompson, where we held that, unlike Douglass, an agreement releasing a motorcycle dealership from “any claim” was not sufficiently clear to exculpate it from its own negligent acts. The release at issue in Thompson read: “The undersigned waives any claim that he/she may have now or in the future against [defendant] . . . for injury to him/her self as a result of his/her operation . . . of a motorized vehicle owned by . . . [defendant].” In contrast, the Race Day Entry Form, like the Douglass release, is comprehensive as to type of claim—"liability, loss, claims, and demands that may accrue from any loss, damage or injury.” The Race Day Entry form is sufficiently clear as to operate as a release of negligence claims against defendants.

We explained in Thompson that “evaluating whether a release from liability contravenes public policy does not follow a strict formula because no single formula will reach the relevant public policy issues in every factual context.” Id., ¶ 6 (quotation omitted). “Rather,” we continued, “we consider the totality of the circumstances and societal expectations to determine whether sufficient public interest exists to avoid a release.” Id. We conclude, given the totality of the circumstances of this case, the nature of the activity, and the expectations of society, that there are no public policy barriers to effectuating the Race Day Entry Form.

Johnson, J., dissents for the simple and obvious reason that this case is plainly controlled by Thompson v. Hi Tech Motor Sports, Inc., 2008 VT 15, ___ Vt. ___, 945 A.2d 368, where the Court held that a similar contractual release was insufficiently clear and unambiguous to insulate the defendant from liability for its own negligence.