Bowling v. Mammoth Cave Adventures, LLC

BILLY D. BOWLING APPELLANT v. MAMMOTH CAVE ADVENTURES, LLC APPELLEE

NO. 2019-CA-000822-MR

Commonwealth of Kentucky Court of Appeals

APRIL 24, 2020

NOT TO BE PUBLISHED

APPEAL FROM BARREN CIRCUIT COURT

HONORABLE JOHN T. ALEXANDER, JUDGE

ACTION NO. 18-CI-00357

OPINION

AFFIRMING

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BEFORE: DIXON, GOODWINE, AND TAYLOR, JUDGES.

GOODWINE, JUDGE: Billy D. Bowling ("Bowling") appeals the Barren Circuit Court's order granting summary judgment in favor of Mammoth Cave Adventures, LLC ("MCA"). The circuit court found the exculpatory agreement between the parties was enforceable. On appeal, Bowling argues material facts precluded summary judgment. After careful review of the record, finding no error, we affirm.

On June 10, 2017, Bowling went to MCA to zip line with his friends. Before engaging in the activity, Bowling signed a release of liability. Bowling injured his right ankle when approaching the landing platform.

On June 8, 2018, Bowling filed suit against MCA in Barren Circuit Court alleging he was injured as a result of MCA's negligence. He asserted the zip lining course and landing ramp were unlit, which resulted in his injury.

MCA moved for summary judgment, arguing the release of liability was an enforceable exculpatory agreement under Hargis v. Baize, 168 S.W.3d 36 (Ky. 2005). Because the agreement was enforceable, MCA was not liable for any alleged negligent conduct.

The circuit court heard MCA's motion on February 25, 2019. On April 18, 2019, the circuit court entered an order granting summary judgment in favor of MCA. The circuit court examined the release of liability, which provides:

RELEASE OF LIABILITY

In consideration of being given the opportunity to participate in the zip line activities of Mammoth Cave Adventures, LLC, I, on behalf of myself, my personal representatives, assigns, heirs and next of kin, do hereby state as follows:

1. I acknowledge that participating in the zip line activity is dangerous. I understand the nature andrigors of the activity and the risk involved in participation.

2. I wish to participate in the zip line activities and as a result, I fully accept and assume all the risks and dangers involved in said activity and accept responsibility for all injuries, losses, costs and damages I incur as a result of the participation in the activity and I release and discharge and covenant not to sue the Mammoth Cave Adventures, LLC, for any liability, claims, damages, demands or losses which I has [sic] been caused by or alleged to have been caused by the actions or negligence of Mammoth Cave Adventures, LLC, and I will indemnify and save and hold it harmless from any litigation expenses, attorney fees, liabilities, damages or costs, it may incur as a result of any claim of mine to the fullness [sic] extent permitted by law.

3. I understand that I have released Mammoth Cave Adventures, LLC, and I have signed this document freely and without any inducement or assurance of any kind.

The circuit court applied the following four factors in determining the agreement was enforceable:

Specifically, a preinjury release will be upheld only if (1) it explicitly expresses an intention to exonerate by using the word "negligence;" or (2) it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party's own conduct; or (3) protection against negligence is the only reasonable construction of the contract language; or (4) the hazard experienced was clearly within the contemplation of the provision. "Thus, an exculpatory clause must clearly set out the negligence for which liability is to be avoided."

Id. at 47 (citations omitted).

Bowling subsequently filed a motion to alter, amend, or vacate, which the circuit court denied. This appeal followed.

"Appellate review of a summary judgment involves only legal questions and a determination of whether a disputed material issue of fact exists. So we operate under a de novo standard of review with no need to defer to the trial court's decision." Shelton v. Kentucky Easter Seals Soc'y, Inc., 413 S.W.3d 901, 905 (Ky. 2013) (citations omitted).

On appeal, Bowling does not contest the circuit court's determination that the release of liability was enforceable under Hargis. Instead, he argues: (1) an employee of MCA negligently misrepresented that he could zip line despite being over the weight limit, (2) MCA was negligent in not lighting the course or landing area, and (3) the doctrine of equitable estoppel applies.

First, we address Bowling's negligence arguments. By signing the release of liability, Bowling surrendered his "right to prosecute a cause of action" against MCA. Waddle v. Galen of Kentucky, Inc., 131 S.W.3d 361, 364 (Ky. App. 2004) (citation omitted). Although exculpatory agreements "are disfavored and are strictly construed against the parties relying upon them," Bowling fails to assert why the agreement at issue is unenforceable. Hargis, 168 S.W.3d at 47 (citations omitted). He does not contest the circuit court's thorough analysis under Hargis and does not raise a public policy argument under Miller as Next Friend of E.M. v.House of Boom Kentucky, LLC, 575 S.W.3d 656, 660 (Ky. 2019). Instead, Bowling asks this Court to consider whether MCA acted negligently. Bowling signed an exculpatory agreement agreeing not to sue MCA for any damages caused by its alleged negligence, which the circuit court found enforceable. Bowling has no factual basis for his claim against MCA as a matter of law because he signed an enforceable exculpatory agreement. As such, because this agreement cut off Bowling's right to sue for the injuries he sustained, his allegation that MCA acted negligently does not amount to a genuine issue of material fact to survive summary judgment.

Furthermore, we decline to address Bowling's equitable estoppel argument. Not only is it conclusory, he also failed to raise the argument before the circuit court. "It is axiomatic that a party may not raise an issue for the first time on appeal." Sunrise Children's Services, Inc. v. Kentucky Unemployment Insurance Commission, 515 S.W.3d 186, 192 (Ky. App. 2016) (citation omitted). "As this Court has stated on numerous occasions, 'appellants will not be permitted to feed one can of worms to the trial judge and another to the appellate court.'" Elery v. Commonwealth, ...