Shealeen HILLERSON as best friend to T.D., and T.D., Plaintiffs and Appellants
BISMARCK PUBLIC SCHOOLS and Mandan Parks and Recreation, and Missouri Valley Family Young Men's Christian Association, Defendants. Missouri Valley Family Young Men's Christian Association, Appellee.
Rehearing Denied Nov. 21, 2013.
[Copyrighted Material Omitted]
Benjamin C. Pulkrabek, Mandan, ND, for plaintiffs and appellants.
Mark J. Condon, Bloomington, MN, for defendant and appellee.
VANDE WALLE, Chief Justice.
[¶ 1] Shealeen Hillerson, as " best friend" to T.D., a minor child, and T.D. appealed from a summary judgment dismissing their negligence lawsuit against the Missouri Valley Family YMCA for injuries T.D. suffered in a near-drowning accident while participating in a YMCA summer program. Because we conclude that the waiver of liability signed by T.D.'s mother is ambiguous, a question of fact exists as to the intent of the parties. We reverse the summary judgment and remand for further proceedings.
[¶ 2] In March 2008, Kristina and Brandon Dickerson enrolled their minor daughter T.D. in a summer Extended School Program (" ESP" ). The ESP was run in conjunction by the YMCA, Bismarck Public Schools, and the Bismarck Parks and Recreation Department. The ESP was funded by a federal grant obtained by the Bismarck Public School District and the YMCA. The program was designed, in part, to provide summer educational opportunities " in a stimulating, safe, drug-free, supervised environment to a large number of at-risk students." Before enrolling her daughter in the program, T.D.'s mother filled out a YMCA registration form that contained two release of liability provisions. T.D.'s mother signed the release of liability provisions. T.D. did not sign the release. The waiver provisions provided:
I understand that the Bismarck ESP does not carry medical, dental or eye glass insurance and that I will be responsible for any medical charges my child may incur. I hereby release the Missouri Valley Family YMCA and Bismarck Public Schools from any liability.
My child has my permission to attend/participate in all field trips unless otherwise stated by me in writing directly to the Site Coordinator. I understand that the Bismarck ESP does not carry medical, dental or eye glass insurance and that I will be responsible for any medical charges my child may incur. I hereby release the Missouri Valley Family YMCA and Bismarck Public Schools from any liability.
At the bottom of the YMCA registration form, T.D.'s mother also signed a certification clause stating, " I certify that the above information is true to the best of my knowledge and I understand the Missouri Valley Family YMCA is not responsible for accidents." In May 2008, T.D. and her older sister, who was also a minor child at the time of the incident, were accepted into the program. T.D. and her sister each received a full scholarship for the program for the entire summer.
[¶ 3] On June 13, 2008, T.D., who was six years old at the time of the incident, went to the Mandan Community Center swimming pool with approximately forty-two other children and seven adults as part of the program. The YMCA states in its brief that the number of staff members exceeded the state and county's child-to-adult ratio requirements. While at the pool, T.D. was found unresponsive and submerged in the three-foot-deep end of the water. It is unclear how T.D. entered the water. As a result of her near-drowning and oxygen deprivation, T.D. suffered debilitating injuries including hypoxic brain injury and hypoxic ischemic encephalopathy.
[¶ 4] In March 2011, Hillerson, as best friend to T.D., and T.D. filed suit against the Bismarck Public Schools and Mandan Parks and Recreation, alleging the entities were negligent " by failing to provide appropriate supervision, failing to provide safe facilities and equipment, failing to warn of the dangers associated with a swimming pool, failure to properly train its employees and in such other ways as will be established at the time of trial." T.D. later amended her complaint to include the YMCA as a defendant. Bismarck Public Schools and Mandan Parks and Recreation settled the claims against them and are no longer parties to the suit.
[¶ 5] The YMCA moved for summary judgment, arguing the release of liability signed by T.D.'s mother relieved the YMCA of any liability for T.D.'s injuries. In February 2013, the district court granted the YMCA's motion for summary judgment, concluding the release of liability provisions exonerated the YMCA from liability for the injuries T.D. suffered while in the program. The district court found the release in the instant case was " nearly identical" to the release of liability language found in Kondrad ex rel. McPhail v. Bismarck Park Dist., 2003 ND 4, 655 N.W.2d 411.
[¶ 6] On appeal, T.D. asserts the district court erred in granting summary judgment in favor of the YMCA because the release of liability provisions did not exonerate the YMCA from liability for its alleged negligence.
[¶ 7] This Court's standard of review for summary judgment is well-established:
Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record.
Missouri Breaks, LLC v. Burns, 2010 ND 221, ¶ 8, 791 N.W.2d 33.
[¶ 8] The party opposing summary judgment cannot " simply rely upon the pleadings or upon unsupported, conclusory allegations." Spratt v. MDU Res. Grp., Inc., 2011 ND 94, ¶ 7, 797 N.W.2d 328. The nonmoving party " must set forth specific facts by presenting competent, admissible evidence, whether by affidavit or by directing the court to relevant evidence in the record, demonstrating a genuine issue of material fact." Id. Additionally, we have stated, the onus is on the party opposing summary judgment to draw the court's attention to relevant evidence in the record; " the court has no duty to scour the record for evidence that would preclude summary judgment." Tarnavsky v. Rankin, 2009 ND 149, ¶ 8, 771 N.W.2d 578.
[¶ 9] On appeal, T.D. contends the language of the waiver signed by her mother did not release the tort claim of the child. The YMCA argues T.D.'s contentions are unsupported statements that are not part of the record. We agree with the YMCA. Our review of the record reveals that T.D. failed to adequately allege the waiver did not apply to her as a child, thus, the argument is not proper on appeal. Issues not raised in the trial court cannot be raised for the first time on appeal. Alerus Fin., N.A. v. Lamb, 2003 ND 158, ¶ 17, 670 N.W.2d 351. " Evidence which does not appear in the record of the [district] court proceedings cannot be considered by this Court on appeal." Arndt v. Maki, 2012 ND 55, ¶ 15, 813 N.W.2d 564.
[¶ 10] At the summary judgment proceeding, the only semblance of an argument that the mother's waiver did not apply to T.D.'s potential cause of action is found in the following statements made by her attorney at the hearing: " [ Kondrad is] more specific. It deals with physical injuries. It talks about assumption of risk. It talks about the waiver of claims and not only waives them for the mother, it waives them for the child, and it refers to program and just civil liabilities." The argument was not expounded further. Because T.D. failed to allege at the trial court level that the release signed by her mother did not waive T.D.'s own potential cause of action, we do not consider whether a pre-injury waiver of liability signed by a parent affects the potential claims of the child.
[¶ 11] T.D. additionally argues the YMCA was precluded under N.D.C.C. § 9-08-02 from exonerating itself from willful acts. Under N.D.C.C. § 9-08-02, " contracts which have for their object, directly or indirectly, the exempting of anyone from responsibility for that person's own fraud or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law." " Generally, the law does not favor contracts exonerating parties from liability for their conduct." Kondrad, 2003 ND 4, ¶ 6, 655 N.W.2d 411; see also Reed v. Univ. of North Dakota, 1999 ND 25, ¶ 22, 589 N.W.2d 880. However, parties to an otherwise lawful contract are still bound by the clear and unambiguous language " evidencing an intent to extinguish liability, even though exculpatory clauses are construed against the benefitted party." Kondrad, at ¶ 6.
[¶ 12] The YMCA again contends T.D. failed to allege the YMCA acted willfully, intentionally, or grossly negligent, and thus, her argument is improper here. In T.D.'s original complaint and amended complaint, she only alleged the YMCA was " negligent, among other things, by failing to provide appropriate supervision, failing to provide safe facilities and equipment, failing to warn of the dangers associated with a swimming pool, failure to properly train its employees and in such other ways as will be established at the time of trial." The complaint further states that " as a direct and proximate cause" of the YMCA's negligence, T.D. " sustained and will in the future sustain medical expenses for her care, treatment and other economic losses." The complaint is devoid of any language pertaining to intentional or willful conduct on the part of the YMCA.
[¶ 13] At the summary judgment hearing, T.D.'s attorney, referring to Kondrad, stated, " you can argue invalidity because of the liability from intentional or willful acts ... this case hasn't gone to trial yet and I would make a ...