Moore bought an ATV from Arctic Cat. They recommended
that she take a training class on how to ride the ATV offered by Hartley,
which she did.
Moore signed a consent and release form absolving Hartley
of any liability for injuries incurred during the course.
Moore was thrown from the ATV during the training course
and sued Hartley, Arctic Cat and the salesman for negligence for
failing to provide a safe training environment.
The Trial Court granted summary judgment for Hartley.
Moore appealed.
Hartley argued that Moore was barred from recovered due
to her express assumption of the risk.
The Appellate Court reversed and remanded the case for
trial.
The Appellate Court found that Hartley did not "have
a decisive advantage in bargaining strength due to the essential nature
of the service."
In Tunkl v. Regents of University of California
it was held that when one party is providing an essential service (such
as medical help), then it is unconscionable to ask for a
liability waiver.
The Appellate Court found that, upon close reading of the
waiver Moore signed, that she was only waiving liability for damage from
"unavoidable and inherent risks" from riding an ATV. The
waiver did not explicitly waive liability for Hartley's negligence.
Hartley had a duty to avoid unnecessary risks.
This is a factual issue and must be decided by a jury.
Therefore summary judgment is not appropriate.
