Memo for Motion Against Summary Judgment

I. Introduction and Standard for Opposition to Summary Judgment

Crowell Academy, Inc. and Arturo Gomez, (hereinafter, collectively "Crowell") were grossly negligent and used willful misconduct in their responsibilities involving the fencing club. The bargaining power of Crowell was so grossly unequal so as to put Lajuana Barnett at the mercy of Crowell's negligence. Lastly, the exculpatory clause contained in the release form (see release form) is void as against public policy. Consequently, under Maryland law, it is up to the trier of fact to determine if the exculpatory clause is unenforceable. As such, there is a dispute as to the genuine issue of material fact related to Crowell's Answer, Crowell can be liable to Lajauna Barnett for negligence, and Crowell is not entitled to Summary Judgment as a matter of law.

Summary Judgment should be granted only upon a showing that there is no genuine issue as to any material fact. Fireman's Fund Ins. Co. v. Rairigh, 59 Md. App. 305, 313, cert. denied, 301 Md. 176 (1984). If there is a conflict between the inferences which may be drawn from the evidence before the court, summary judgment is not proper. Boucher v. Riner, 68 Md. App. 539, 543 (1986) (quoting Coffey v. Derby Steel Co., 291 Md. 241, 246-247 (1981)). Unless the facts are so clear as to permit a conclusion as a matter of law, it is for the trier of fact to determine whether a defendant's negligent conduct amounts to gross negligence. Jacob v. Davis, 128 Md.App. 433, 465 (1999) (quoting Artis v. Cyphers, 100 Md.App. 633, 652 (1994)). Generally, exculpatory agreements otherwise valid are not construed to cover the more extreme forms of negligence-wilful, wanton, reckless, or gross. Winterstein v. Wilcom, 16 Md.App. 130, 136 (1972).

II. Statement of Undisputed Material Facts

1. Defendant Arturo Gomez is the fencing coach at Crowell and at all times relevant to this matter acted as Crowell's servant.

2. Crowell provides weapons and electronic scoring devices for club members; club members provide their own protective equipment, including mask, glove, jacket, and plastron.

3. In the fencing Club meeting prior to October 16, 2001, Gomez instructed team members in footwork preparatory to allowing them to handle weapons

4. In the October 16, 2001 club meeting, Gomez instructed club members to don their protective equipment for their initial experience with using their weapons.

5. Plaintiff's nerve was severed under her left arm when an epee sliced through plaintiff's jacket.

6. Plaintiff had put the plastron on her right arm.

7. Plaintiff is left handed.

8. Plaintiff was required to undergo two surgeries and a concomitant course of physical therapy, and did not receive clearance from her doctor to resume training until March 2002.

III. Legal Reasoning

A. Exculpatory clauses are generally valid. Wolf v. Ford, 335 Md. 525 (1994). There are circumstances under which the public interest will not permit an exculpatory clause in a contract; these have often been grouped into three general exceptions. Id. at 531.

First, a party will not be permitted to excuse its liability for intentional harms or for the more extreme forms of negligence, i.e. reckless, wanton, or gross. Second, the contract cannot be the product of grossly unequal bargaining power. Third, pubic policy will not permit exculpatory agreements in transactions affecting the public interest. Id. at 525-526.

B. Crowell is not entitled to summary judgment as a matter of law as to the negligence claim because Crowell was grossly negligent in their conduct regarding the fencing club. Gross negligence is when a wrongdoer inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist. Boucher, 68 Md. App. at 539. As coach of the fencing team, Arturo Gomez had a duty to inspect each and every participant to make sure that each had put on their safety gear correctly. The plaintiff was the last in line to be checked, and the plaintiff states that the defendant did not really look at her at all, appearing anxious to get the inspections completed. The defendant did not ask whether the plaintiff was left or right handed, and the plaintiff, not knowing otherwise, put on her equipment the same way as she saw the other members of the club putting on their gear. A waiver of a right to sue is ineffective to shift the risk of a party's own willful, reckless, or gross conduct. Id. at 543 (citing Winterstein v. Wilcom, 16 Md.App. 130, 134-36, cert. denied, 266 Md.744 (1972)).

In the present case, the defendant was "certified by the U.S. Fencing Association to provide instruction in fencing" and was to "instruct fencing club members in the proper methods of fencing." These are direct quotes taken from the release form signed by the plaintiff. In signing the exculpatory clause, plaintiff was to release defendant from "any and all claims" arising out of student's participation in fencing club activities. In return, plaintiff was to receive instruction in the proper methods of fencing. This includes proper instruction in putting on the safety equipment, arguably the most important aspect of the sport of fencing. The wording any and all claims can be construed as ambiguous. It would be against public policy to hold valid a claim that released the defendant from any and all claims arising out of fencing club activities, including claims arising from the defendant's negligence. The plaintiff signed the exculpatory clause releasing the defendant from "any and all claims arising out of Student's participation in fencing club activities," not "any and all claims" arising out of the negligence of the defendant.

Due to the fact that the defendant was rushing and anxious to finish checking the member's safety equipment, he failed in his duty to instruct the plaintiff in the proper manner in which to wear the plastron and to inspect her to verify that she had put the plastron on the proper arm. It is due to the defendant's extreme form of negligence that she placed the plastron on the incorrect arm, thus leaving it unprotected. Whereas in the case of Boucher v. Riner, where it was found that the defendant was attentive to the plaintiff, and that there was no showing of indifference on the part of the defendant, in the present case, the defendant was in no way attentive to the plaintiff. Boucher, 68 Md.App. at 548.

C.