Perspectives: Exculpation exonerates, excuses exercise errors

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“Exculpation: The act of freeing someone from guilt or blame … The action of excusing a mistake or offense … [or] some offensive behavior.”

www.vocabulary.com

There are a number of ways for tortious liability to be imposed upon a party.

Conversely, there are many manners in which they can be relieved of liability, such as privileges, immunity, and other defenses

Another way to fend off liability for tortious behavior is to use an exculpation clause, a device used in contractual relationships to insulate a wrongdoer from liability.

A classic illustration of that mechanism was reflected in a recent ruling of the Minnesota Court of Appeals that attracted particular attention because of the identity of the injured party, Hennepin County District Court Judge Fred Karasov, a well-liked and highly-regarded jurist. The genial judge suffered a serious life changing injury while exercising at a fitness club more than four years ago.

His guardian, who is also serving as his caretaker, brought an action against the fitness facility and its parent company for sizable damages attributable to the incident. But the Court of Appeals, affirming a lower court ruling, upheld denial of liability on several grounds, including the existence of an exculpation clause in Lund v. Orange Fitness, Inc., 2023 WL 8368507 (Minn. Ct. App. Dec. 4, 2033) (unpublished).

Injury incident 

The judge, now 70 years old, suffered cardiac arrest in the middle of a workout class at a fitness facility in September 2019. He suffered massive and permanent brain injury, which left him severely disabled and under the care of his custodian, Tina Lund, who brought an action, serving as his conservator, against the fitness facility where the incident occurred and its franchisor, citing a number of negligence actions in failing to promptly and properly attend to the judge after the incident occurred.

All of the claims against the fitness facility were dismissed on summary judgment, except the ones for willful and wanton negligence. The case went to trial and resulted in a jury verdict for the defendant, which Karasov’s conservator challenged.

The basis for summary judgment on the negligence claim was an exculpation clause that Karasov signed when he joined the club. The Hennepin County District Court judge relied upon the portion of the document providing that he “assumes fully responsibility … [and] waives all claims,” along with a hold harmless. The conservator challenged that determination on various grounds, along with objection to remarks made by the defense counsel concerning the evidentiary standard uttered in both the opening statement and closing argument at trial.

Exculpation effective

The appellate court affirmed, holding that the franchisor was not liable on either grounds of apparent authority or vicarious liability. It also ruled that the curative instructions given by the judge to the jury ameliorated any incorrect assertions by defense counsel regarding the evidentiary issues.

On the main issue of the exculpation clause, the appellate court also denied liability, but on different grounds than the lower court. It pointed to a different passage in the document. The terminology of the exculpation agreement cited by the lower court was insufficient because it did not specifically refer to the offending party’s “own negligence,” as required by prior State Supreme Court case law, dating back to Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920 (Minn. 1982) and as later amplified by that court in Justice v. Marvel, 979 N.W.d 894 (Minn. 2022), a ruling that occurred after the trial in the Karasov litigation.

Instead, the appellate court deemed the exculpation clause effective because it released the fitness facility from “all acts of active or passive negligence,” with specific reference to the facility’s name and its agents, employees and others acting on its behalf. This specificity satisfied the requirements of the Schlobohm-Justice line of reasoning and warranted dismissal of the various negligence claims against the facility.

The appellate court ruling was an unusual undertaking in several respects. First, it represented a departure from the long-held principle that exculpation clauses are subject to a two-prong analysis, based upon the wording of the clause and the nature of the services, with “public or essential” attributes warranting the strictest scrutiny. But the sole factor in this case was the terminology of document itself.

Second, the ruling addressed an unusual combination of alleged improper remarks by counsel in both the opening statement as well as the closing argument, both deemed to be trumped by the judge’s instructions to the jury.

Third, the ruling turned on a decision by the Supreme Court that came after the trial, the Justice v. Marvel case.

Fourth, the ruling relied upon the rare, but permissible principle of affirmance by the appellate court on other different grounds than the trial court under Doe v. Archdiocese of St. Paul, 817 N.W.2d 150 (Minn. 2012).

The recent case involving Judge Karasov and others before it reflect the difficulties of pursuing and prevailing in tort litigation after execution of an exculpation agreement, which often has the effect of executing any such claims for negligence of the offending party.

PERSPECTIVES POINTERS

Other Minnesota Exculpation Clause Cases

• Justice v. Miracle (2022): Inflatable play area.
• Davitt v. London Road Rental Center (2010): Folding picnic table.
• Yana v.Voyageur Houseboats (2008): Carbon monoxide fumes on houseboat.
• Schlobohm v.Spa Petite (1982): Fitness center.

Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.

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