Tort Law

Editor:
Keith A. Cutler, Esquire

Where an exculpatory clause releases all negligence except recklessness, whether the defendant’s conduct was reckless is a question of fact, precluding summary judgment.  Decormier v. Harley-Davidson Motor Company Group, Inc., et al., No. 99064 (Mo. App. E.D., August 13, 2013), Cohen, J.

Plaintiff filed suit against defendants for injuries sustained while participating in a Harley-Davidson new rider course.  Prior to participating, plaintiff signed a release which contained an exculpatory clause releasing defendants from any and all claims of any kind whatsoever resulting from defendant’s negligence.   Defendants moved for summary judgment on the ground of release. Plaintiff argued that the release did not operate to exculpate defendants from claims of gross negligence or recklessness, and that a genuine issue of material fact existed as to whether defendants’ conduct was grossly negligent or reckless.   The trial court granted summary judgment in favor of defendants, and plaintiff appealed.

Held
Reversed and remanded.  While an exculpatory clause can serve as a bar to claims of ordinary negligence, under Missouri law, such a clause can never be used to exculpate a defendant from intentional torts or for reckless conduct .  Citing to both the Restatement (First) of Torts, and the Restatement (Second) of Torts, the court of appeals opined that recklessness is an aggravated form of negligence, which differs in quality, rather than degree, from ordinary care.  A person is reckless if he engages in conduct which he knows or should know creates an unreasonable risk of harm to others.   In this instance, because of the icy and slippery conditions of the outdoor range of the new rider course, there was a genuine issue of fact as to whether defendants, by allowing new riders on the range in those conditions, created an unreasonable risk of harm.  Therefore, the trial court erred in granting summary judgment.


For an employee with an occupational disease, workers’ compensation law is not the employee’s exclusive remedy.  Amesquita, et al. v. Glister-Mary Lee Corporation, et al., No. 99266 (Mo. App. E.D., September 10, 2013), Odenwald, J.

Plaintiffs brought suit claiming that they contracted an occupational disease from working at defendants’ popcorn production plant. Defendants filed a motion to dismiss the lawsuit, contending that workers’ compensation law was plaintiffs’ exclusive remedy. The trial court dismissed plaintiffs’ petition, and plaintiffs appealed.

Held
Reversed and remanded.  The Workers' Compensation Law, §§ 287.010 et seq., provides that it shall be the exclusive remedy for all employees on account of an accidental injury or death Prior to the 2005 revision to the Workers Compensation Law, the statutory definition of accident included an unexpected or unforeseeable event or series of events. When the law was revised in 2005, the definition of “accident” was narrowed to mean an unexpected traumatic event occurring during a single work shift.   While prior to 2005, occupational diseases were considered to be “accidents” by some courts because they occurred in a series of events, the 2005 revision made it clear that occupational diseases were no longer to be considered “accidents,” in that they are not contracted during a single work shift. Because the exclusivity provision of the Workers’ Compensation Law applies only to accidental injury or death, and under the 2005 revisions, occupational diseases are no longer considered “accidents,” the exclusivity provision did not apply to plaintiffs’ claims.   Thus, the trial court erred in granting defendants’ motion to dismiss.