Concordia University (Concordia) is a private higher education institute in Nebraska. It recruited Konrad Sinu (Sinu) to play for the university’s men’s soccer team. Before Sinu moved to Nebraska from his home in England, he signed an “Assumption of Risk and Waiver of Liability Release.” Because Sinu was 18 years old, Sinu’s mother also signed the release.
About 5 months after arriving at Concordia, Sinu and his teammates were doing their mandatory strength and conditioning workout at the university’s gym. The workout involved circuit training in which the students moved from one exercise station to another in small groups. One station was a “face pull,” an exercise in which an elastic resistance band is secured to a squat rack post and pulled towards the user’s face. When Sinu performed the exercise, the resistance band slid off the hook and caused injury to his eyes.
Sinu and his mother sued Concordia in Nebraska state court, alleging multiple causes of action, including negligence. Concordia asserted a numerous defenses, including that Sinu’s claim was barred by the release signed by Sinu and his mother and by the doctrine of assumption of risk.
Concordia moved for summary judgment. The trial court ruled in favor of Concordia and dismissed Sinu’s complaint. The court rejected Sinu’s arguments that the release was unconscionable, that it did not release Concordia from liability for its own negligence, and that the release did not amount to an assumption of risk. Sinu and his mother appealed to the Nebraska Supreme Court.
The Nebraska Supreme Court agreed with the trial court. The Supreme Court explained that the release is a type of exculpatory clause, which is a “contractual provision relieving a party from liability resulting from a negligent or wrongful act.” Exculpatory clauses deny an injured party the right to recover damages from the very person or entity who negligently caused the injury. The Court explained that an exculpatory clause is enforceable only when it makes clear the effect of the agreement – meaning, the wording of the agreement “must be so clear and understandable that an ordinary and knowledgeable party will know what [they are] contracting away.”
The Court rejected Sinu and his mothers’s argument that the release was not clear because it did not specifically state that by signing the agreement, Sinu and his mother agree to release Concordia from its own negligence. Instead, the Court examined the language of the release and determined the intended effect of the release was clear. The title of the agreement – “Assumption of Risk and Waiver of Liability Release” appeared in large, boldface type at the top of the release. The release stated “[i]n consideration of … being provided access and the opportunity to use the Walz” and in recognition of the “risks inherent in such physical activity, I do hereby … release … the [u]niversity … from and against any and all claims, demands, injuries, actions or causes of action, for … personal injury … which may result from my presence at or participation in any such [u]niversity activities.” As such, the Court determined that the language of the release clearly demonstrated an intent to eliminate Concordia’s liability.
The Court also rejected Sinu and his mother’s argument that the release was ambiguous in notifying them that they were releasing Concordia from liability caused by Concordia’s own negligence. The Court found the release placed no liability on Concordia for any injury suffered by Sinu. The plain language of the release plainly stated that Sinu released Concordia from and against any and all claims “which may result from [Sinu’s] presence at or participation in any such university activities.”
The Court also held that the release was valid and not unconscionable or void as against public policy. The Court explained that courts should be cautious in voiding contracts, and should only do so if the contract is “quite clearly repugnant to the public conscious.” The Court found there was no disparity in bargaining power between Concordia and Sinu and his mother when entering into the agreement, an essential fact in determining unconscionability. The Court rejected Sinu’s argument that he was 18 and living in Europe when he signed the release, and was forced to sign the release to attend Concordia. The Court found that Sinu had a reasonable opportunity to understand the terms of the contract because he had a month to review the release before moving to Nebraska. His mother also signed the contract. Additionally, exculpatory agreements in the recreational sports context are not against the public interest.
Ultimately, the Nebraska Supreme Court agreed with the trial court and dismissed the case.
Sinu v. Concordia University (2023) 313 Neb. 218.
Note:
While this case is from Nebraska and not binding in California, this case is an important reminder that private colleges, universities, and K-12 schools need to ensure that waivers, including for recreational activities, must be clear and unambiguous.