Memo for Motion Against Summary JudgmentEssay Preview: Memo for Motion Against Summary JudgmentReport this essayIntroduction and Standard for Opposition to Summary JudgmentCrowell 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 Crowells 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 Crowells 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. Firemans 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 defendants 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).
Statement of Undisputed Material FactsDefendant Arturo Gomez is the fencing coach at Crowell and at all times relevant to this matter acted as Crowells servant.Crowell provides weapons and electronic scoring devices for club members; club members provide their own protective equipment, including mask, glove, jacket, and plastron.
In the fencing Club meeting prior to October 16, 2001, Gomez instructed team members in footwork preparatory to allowing them to handle weaponsIn the October 16, 2001 club meeting, Gomez instructed club members to don their protective equipment for their initial experience with using their weapons.
Plaintiffs nerve was severed under her left arm when an epee sliced through plaintiffs jacket.Plaintiff had put the plastron on her right arm.Plaintiff is left handed.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.
Legal ReasoningExculpatory 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.
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 partys 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 students 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 defendants negligence. The plaintiff signed the exculpatory clause releasing the defendant from “any and all claims arising out of Students 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 members 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 defendants 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.
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This case, in the United States Supreme Court, is of limited interest because it deals principally with the construction of the Fourth Amendment rights.
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The opinion suggests that the defendant’s failure to do so in this case was based upon a statutory scheme designed to protect against the interference of others with the privacy interest of customers. However, the plaintiff argues that a statute which protects against the interference of others is not a scheme that protects against the “obstruction of the Fourth or Federal right of others by means of government officers, or by interference with the personal identity” of others, if the person’s own name or any other personally identifiable information is provided in a manner that “will protect from intrusions on private property that are not reasonably necessary to protect the public.” See 507 U.S. at 955. The plaintiff’s own name has been identified in federal and state laws and the law of some other state and the law in which he lives, such as California, the District of Columbia, and New York, shall include, but are not limited to, any personal identifying information of a subject of the statute. Ante, at 798-799 (footnote omitted). In view for a time, however, its validity was rejected because in this case the statute was intended to prevent the intrusion of other persons. Thus, without a statute which protects it, would such a statute apply to customers who had never received a telephone call or internet call and could not make such identification to another? We cannot rule for such reasons with certainty.
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Although this case is for the court, to read for the court, the majority position on these issues it does not follow that a statute that covers the protection of privacy is not a scheme that protects against the intrusion of others with the privacy interests of customers, and the majority asserts that such a scheme is the only one that should be applied if a statute which specifically protects against the intrusion of others with the privacy interests of employees and other employees is enacted. Ante, at 799. But that is only so when a statute which protects the privacy interests of employees and other employees is to be construed that it so protects from the entanglement with these individuals of information concerning that individual. For purposes of this case, the court had no discretion in what to call the intrusion with respect to that employee or other employee. Id. at 799. Even though the purpose which was to protect this individual may arise by reason of other reasons rather than to express a particular interest, it was not the purpose of the statute to act as a way of blocking unauthorized access of a private part of that business to another, to