Barber v. Eastern Karting Co.

DAVIS, Judge. Shawna Barber appeals from two orders of the Circuit Court for Anne Arundel County granting summary judgment in favor of appellees Woodbridge Karters, Inc. (Woodbridge), Margay Racing Products, Inc. (Margay), and Eastern Karting ⁶⁶⁴ Company (Eastern). Several questions are presented on this appeal; we restate them as follows: I. Did the circuit court err in granting summary judgment in favor of Margay and Eastern on the ground that the anticipatory release fully released Margay and Eastern of appellant’s strict product liability claims?

II

Did the circuit court err in granting summary judgment in favor of Woodbridge, Margay, and Eastern based on the anticipatory release, because: (1) the anticipatory release allegedly was not intended to apply to claims for injuries not ordinarily associated with go-kart racing; and (2) the terms of the anticipatory release were allegedly not made clear to appellant?

III

Did the circuit court err in granting summary judgment in favor of Woodbridge based on the anticipatory release because the evidence on the record purportedly establishes a genuine dispute as to whether appellant fully intended to release Woodbridge from liability based on Woodbridge’s allegedly reckless conduct?

IV

Did the circuit court err in granting summary judgment in favor of Margay and Eastern on the ground that appellant assumed the risk of her injury? V. Did the circuit court err in granting summary judgment in favor of Margay and Eastern on the ground that appellant was contributorily negligent? To all but the third question, we respond in the affirmative. As a result of the disposition of the questions presented, we remand this case to the circuit court for further proceedings consistent with this opinion.

FACTS On September 18, 1993, appellant suffered an extremely serious injury when her hair became entangled in the rear axle of a high-performance go-kart that she was driving during a go-kart racing event organized and sponsored by ⁶⁶⁵ Woodbridge. Woodbridge, a not-for-profit corporation, operates a go-kart racing club that organizes and sanctions go-kart racing competitions. Appellant was driving an “Enduro” go-kart manufactured by Margay and sold by Eastern to Cort Kane, an experienced go-kart racer. Kane was appellant’s boyfriend at the time, and is now appellant’s husband.

This go-kart is not the ordinary type one would expect to find at amusement parks or at Ocean City, Maryland. Rather, it is a high-performance racing go-kart capable of reaching speeds in excess of 100 m.p.h., is between six and seven feet long, and rides only inches from the track surface. When in the reclined driving position, the driver’s head rests against a headrest in the rear of the vehicle. In this position, according to appellant’s estimation, the driver’s head is approximately four inches from the rear-mounted engine and rear axle.

There are no seat-belts or shoulder harnesses, and the rear axle, which is also very close to the driver’s head, is exposed and is not equipped with any type of shield or guard. The racing event, in which appellant suffered her tragic injuries, was held at the Summit Point Raceway (raceway) in Summit Point, West Virginia. The raceway is Woodbridge’s “home” track. Both Margay and Eastern are identified in Woodbridge’s 1993 Driver Information Packet and on the 1993 Pit Pass as sponsors of the event.

Appellant attended the event with Kane. Prior to the Summit Point event, appellant had never raced in a go-kart race. Indeed, she had never previously operated a racing go-kart. Appellant was not a member of Woodbridge or of any other go-kart club and her only experience with go-kart racing was when she accompanied Kane to a go-kart racing event in Charlotte, North' Carolina in late August 1993.

During the Charlotte event, in which Kane raced the go-kart, appellant assisted Kane with changing certain go-kart parts and making various adjustments to the go-kart in preparation for the races. She also helped Kane start the go-kart’s motor with a special starter unit and timed Kane’s laps. ⁶⁶⁶ When the couple arrived for the Summit Point event, a raceway attendant handed them a clipboard with a form on it that they were required to sign in order to enter the raceway. The form, entitled “Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement” (Release), reads as follows: IN CONSIDERATION of being permitted to compete, officiate, observe, work for, or participate in any way in the EVENT(S) or being permitted to enter for any purpose any RESTRICTED AREA (defined as any area requiring special authorization, credentials, or permission to enter or any area to which admission by the general public is restricted or prohibited), EACH OF THE UNDERSIGNED, for himself, his personal representatives, heirs, and next of kin: 1. Acknowledges, agrees, and represents that he has or will immediately upon entering any of such RESTRICTED AREAS, and will continuously thereafter, inspect the RESTRICTED AREAS which he enters and he further agrees and warrants that, if at any time, he is in or about RESTRICTED AREAS and he feels anything to be unsafe, he will immediately advise the officials of such and will leave the RESTRICTED AREAS and/or refuse to participate further in the EVENT(s). 2.

HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the promoters, participants, racing associations, sanctioning organizations or any subdivision thereof, track operators, track owners, officials, car owners, drivers, pit crews, rescue personnel, any persons in any RESTRICTED AREA, promoters, sponsors, advertisers, owners and lessees of premises used to conduct the EVENT(S), premises and event inspectors, surveyors, underwriters, consultants and others who give recommendations, directions, or instructions or engage in risk evaluation or loss control activities regarding the premises or EVENT(S) and each of them, their directors, officers, agents and employees, all for the purposes herein referred to as “Releasees,” FROM ALL LIABILITY TO THE UNDERSIGNED, his personal representatives, assigns, heirs, ⁶⁶⁷ and next of kin FOR ANY AND ALL LOSS OR DAMAGE, AND ANY CLAIM OR DEMANDS THEREFOR ON ACCOUNT OF INJURY TO THE PERSON OR PROPERTY OR RESULTING IN DEATH OF THE UNDERSIGNED ARISING OUT OF OR RELATED TO THE EYENT(S), WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE. 3. HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS the Releasees and each of them FROM ANY LOSS, LIABILITY, DAMAGE, OR COST they may incur arising out of or related to the EVENT(S) WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE. 4. HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE arising out of or related to the EVENT(S) whether caused by the NEGLIGENCE OF RELEASES or otherwise. 5. HEREBY acknowledges that THE ACTIVITIES OF THE EVENT(S) ARE VERY DANGEROUS and involve the risk of serious injury and/or death and/or property damage.

Each of THE UNDERSIGNED also expressly acknowledges that INJURIES RECEIVED MAY BE COMPOUNDED OR INCREASED BY NEGLIGENT RESCUE OPERATIONS OR PROCEDURES OF THE RELEASEES. 6. HEREBY agrees that this Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement extends to all acts of negligence by the Releasees, INCLUDING NEGLIGENT RESCUE OPERATIONS and is intended to be as broad and inclusive as is permitted by the laws of the Province or State in which the Event(s) is/are conducted and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect. 1 HAVE READ THIS RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT, FULLY UNDERSTAND ITS ⁶⁶⁸ TERMS, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT AND HAVE SIGNED IT FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT, ASSURANCE OR GUARANTEE BEING MADE TO ME AND INTEND MY SIGNATURE TO BE A COMPLETE AND UNCONDITIONAL RELEASE OF ALL LIABILITY TO THE GREATEST EX- • TENT ALLOWED BY LAW. According to appellant, she did not read the Release because she did not believe there was sufficient time to do so with several cars behind them waiting to enter the raceway. In any event, appellant stated that she felt that she had no choice but to sign the Release if she wanted to enter the raceway.

Appellant further alleged that she was never given a copy of the Release, nor did anyone at the event discuss the Release with her, explain its terms and scope, or discuss the risks of injury associated with the racing event. Upon her arrival at the raceway for the Summit Point event, appellant planned to attend a course for novice drivers, but Woodbridge cancelled the course due to morning rain. Woodbridge’s policy regarding novice drivers attending the novice class is reflected in its 1993 Driver Information Packet, as follows: “All novices (persons who have competed in less than three (3) races) must attend novice school, if the novice school is offered before being allowed to race or practice. It is recommended that first time drivers to the track also attend the novice school.” Indeed, prior to appellant’s participation, no one from Woodbridge (1) asked appellant whether she had ever driven in a go-kart race before or had go-kart racing experience; (2) told appellant that she could not drive in a race without participating in a training session for first-time drivers; (3) gave appellant an information packet or any other materials containing safety instructions or warnings; or (4) asked appellant whether she was a member of Woodbridge.

Rather, appellant simply paid an entry fee and obtained a go-kart tag number. A Woodbridge official checked the go-kart to confirm that it met racing specifications and to make ⁶⁶⁹ sure that it was not improperly modified. The race official also inspected appellant’s racing helmet to make sure that it was a regulation helmet. No one, however, asked appellant to put the helmet on to see whether it fit properly.

Before the race, appellant drove the go-kart three times around the track during a practice run. Prior to the practice run, appellant put her shoulder length hair in a ponytail with a rubber band, folded it up onto the top of her head so that the ponytail would be inside the helmet, and tucked a few loose hairs into the collar of her racing suit. During the practice run, appellant’s hair did not fall down or come out of her helmet. After the practice run, but before the race, appellant attended a brief driver’s meeting conducted by a Woodbridge official.

During this meeting, track conditions, flag positions, and safety rules relating to driving the go-karts were discussed. According to appellant, at no time during the meeting, or otherwise, did anyone ever warn her that loose clothing or hair could be dangerous while driving the go-kart. Specifically, no one instructed appellant to use a hair net or stocking to keep her hair in place inside the helmet so that it would not get caught in the go-kart’s moving parts. Shortly after the meeting, the race in which appellant would drive started.

About twenty-minutes into her race, with more than seven laps completed, appellant’s hair got caught in the rear axle of the go-kart. This caused appellant’s scalp to be torn literally from her head. Appellant was taken by ambulance to a local hospital, but, due to the nature of her injury, she had to be flown by helicopter to the Washington Hospital Center in Washington D.C. At the Washington Hospital Center, surgeons attempted to re-attach her scalp, which was lacerated into five pieces. Unfortunately, appellant’s scalp could not be saved, and skin grafts from her leg and buttocks were necessary.

Over the course of the next several weeks, appellant underwent multiple operations (totalling many hours) and vigorous physical therapy. Her injuries range from the permanent loss of her scalp, hair, and eyebrows, to ⁶⁷⁰ muscle and nerve damage preventing her eyelids from properly closing. Appellant states that she suffers from severe emotional problems associated with the accident and the loss of her hair and scalp. Although understanding that go-kart racing involved certain dangers (e.g., collisions with other go-karts, overturning go-karts), appellant alleges that she never thought about, considered, understood, or contemplated the possible danger of her hair getting caught in the go-kart’s moving parts and her scalp being torn from her head.

Nonetheless, appellant stated in pre-trial discovery that she arranged her hair in the above-described fashion “[b]ecause I had a definitely instinctive fear of my hair dangling in that affair, whether it be getting in my face, keeping me from seeing or whether it getting caught in moving parts, that did not occur to me then but it just occurred to me that it would [be] dangerous.” Additionally, prior to her accident, appellant was aware of the go-kart’s moving parts behind the headrest, and was at least familiar with the general setup of the go-kart. On July 8, 1994, appellant filed a four-count complaint against Woodbridge, Margay, and Eastern in the Circuit Court for Anne Arundel County. In the first count, appellant sued Margay and Eastern for strict product liability, alleging that the go-kart was defectively designed. In the second count, she sued Margay and Eastern for strict product liability, alleging that Margay and Eastern should have warned appellant of the design defects and latent dangers associated with the exposed rear axle.

In the third count, appellant sued Margay and Eastern for negligently designing the go-kart. In the fourth count, appellant sued Woodbridge for negligently failing to warn her that loose hair or clothing could get caught in the go-kart’s moving parts and cause her injury. Woodbridge filed a motion for summary judgment arguing, among other things, that there was no evidence of negligence on its part, and that, in any event, appellant’s claim was barred by operation of the Release. A hearing on the motion was held on March 28, 1995.

The circuit court ruled from the ⁶⁷¹ bench, stating that “it is clear from the language of this release that [appellant] has fully released [Woodbridge].” Accordingly, the trial judge granted summary judgment in favor of Woodbridge. A -written order to the same effect followed. Margay and Eastern also filed motions for summary judgment. On April 24, 1995, the circuit court heard argument on the motions.

Following the hearing, on May 12, 1995, the circuit court issued a written Memorandum of Opinion and Order granting summary judgment in favor of Margay and Eastern. Therein, the circuit court determined that the Release barred all of appellant’s claims, including the strict product liability claims, against Margay and Eastern since both were “sponsors,” and therefore “releasees,” under the Release. Additionally, the circuit court ruled that appellant assumed the risk of her injuries and was contributorily negligent. From these orders, appellant appeals to this Court.

LEGAL ANALYSIS Standard of Review and Choiee of Law Preliminary, it is necessary to set forth the principles governing our standard of review on this appeal. Md.Rule 2-501(a) (1995) permits a party to “file at any time a motion for summary judgment on all or part of an action on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law.” In response to a motion for summary judgment, the opposing party “shall identify with particularity the material facts that are disputed.” Md.Rule 2-501(b) (1995). The summary judgment proceeding is not a substitute for a trial on the merits, but is a proceeding to determine whether a trial is needed to resolve a factual dispute. Foy v. Prudential Ins.

Co., 316 Md. 418, 422 , 559 A.2d 371 (1989); Faulkner v. American Cas. Co., 85 Md.App. 595, 614, 584 A.2d 734 (1991). A material fact is a fact the resolution of which will somehow affect the outcome of a case. King v. Bankerd, 303 ⁶⁷² Md. 98, 111, 492 A.2d 608 (1985).

If the facts are susceptible to multiple inferences, all inferences must be resolved in favor of the non-moving party (appellant in this case). Id. In addition, the inferences drawn must be reasonable. Beatty v. Trailmaster Products, Inc., 830 Md. 726 , 739, 625 A.2d 1005 (1993).

Where several inferences may be drawn, summary judgment must be denied and the dispute submitted to the trier of fact. King, 303 Md. at 111 , 492 A.2d 608 . Conclusory denials or bald allegations will not defeat a motion for summary judgment. See Seaboard Sur.

Co. v. Richard F. Kline, Inc., 91 Md.App. 236, 243 , 603 A.2d 1357 (1992). Similarly, a mere scintilla of evidence in support of the non-moving party’s claim is insufficient to avoid the grant of summary judgment. Beatty, 330 Md. at 738 , 625 A.2d 1005 . Additionally, it is critical to note that, although suit was filed in a Maryland court, this case is governed by West Virginia law.

Specifically, as the parties concede and as the trial court recognized, under the doctrine of lex loci contractus, the meaning and enforceability of the Release is governed by West Virginia law, American Motorists Ins. Co. v. ARTRA Group, Inc., 338 Md. 560 , 659 A.2d 1295 (1995), 1 and under the doctrine of lex loci delicti, the substantive tort law principles of the accident are those of West Virginia. Ward v. Nationwide Mut. Auto.

Ins. Co., 328 Md. 240 , 244 n. 2, 614 A.2d 85 (1992). West Virginia Legal Principles Before turning to the merits of this appeal, we shall present an overview of the West Virginia legal principles germane to this case. At the onset, we note that both parties have diligently and thoroughly presented to this Court many cases from West Virginia and other jurisdictions in support of their respective positions.

After considering the issues and examining the authorities presented, we are convinced, however, that ⁶⁷³ the outcome of this appeal devolves, in large part, upon a proper understanding and application of one case—Murphy v. North Am. River Runners, Inc., 186 W.Va. 310 , 412 S.E.2d 504 (1991). Because Murphy is of utmost importance to the disposition of this appeal, it is necessary to examine it in detail. The issue in Murphy was as follows: [WJhether the trial court ... properly granted a summary judgment to the defendant on the ground that the anticipatory release executed by the plaintiff was a complete bar to any action by the plaintiff against the defendant for injuries sustained by the plaintiff during a whitewater rafting expedition conducted by the defendant.

Id. at 507. In Murphy, the plaintiff went whitewater rafting as a paying passenger in a raft owned and operated by the defendant. Id. The guide of the raft in which the plaintiff was a passenger attempted a rescue operation of another raft that had become stuck among the rocks in the rapids of the river.

Id. at 507-08. In an attempt to dislodge the stranded raft, the guide intentionally bumped the plaintiffs raft into the stranded raft. Id. at 508. As a result, the plaintiff was thrown about the raft, causing a serious knee and ankle injury.

Id. Prior to the rafting trip, the plaintiff had signed a document that the defendant had drafted, entitled “Raft Trip Release, Assumption of Risk & Permission” (raft release). Id. The pertinent provisions of the raft release were set forth in Murphy as follows: during the raft trip ... certain risks and dangers exist or may occur, including, but not limited to, hazards of traveling on a rubber raft in rough river conditions using paddles or oars and other raft equipment, hiking in rugged terrain, being injured by animals, reptiles or others, becoming ill in remote places without medical facilities available, and being subject to the forces of nature ...

In consideration of the right to participate in such river trip, ... I UNDERSTAND AND DO HEREBY AGREE ⁶⁷⁴ TO ASSUME ALL OF THE ABOVE RISKS AND OTHER RELATED RISKS WHICH MAY BE ENCOUNTERED ON SAID RAFT TRIP, INCLUDING ACTIVITIES PRELIMINARY AND SUBSEQUENT THERETO. I do hereby agree to hold [defendant] harmless from any and all liability, actions, causes of actions, claims, expenses, and damages on account of injury to my person or property, even injury resulting in death, which I now have or which may arise in the future in connection with my trip or participation in any other associated activities ... I expressly agree that this release, waiver and indemnity agreement is intended to be as broad and inclusive as permitted by the law of the State of West Virginia and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect.

This release contains- the entire agreement between the parties hereto and the terms of this release are contractual and not a mere recital. s¡: í¡í Hi Hí # * I further state that I HAVE CAREFULLY READ THE FOREGOING RELEASE AND KNOW THE CONTENTS THEREOF AND I SIGN THIS RELEASE AS MY OWN FREE ACT. This is a legally binding document which I have read and understood. Id. at 508, n. 3. After the injury, the plaintiff filed suit against the defendant, alleging that the defendant’s guide negligently, carelessly, and recklessly caused her injuries.

Id. at 508. The defendant moved for summary judgment based on the terms of the raft release. Id. In opposition to the motion, the plaintiff filed an affidavit of an experienced river guide who opined that there existed reasonable alternatives to the above-described rescue operation that would have posed no risk of harm to the passengers of the plaintiffs raft.

Id. The plaintiff also filed her own affidavit stating that she was not informed in advance of the possibility that her raft might be involved in the rescue of a stranded raft by the “bumping” of ⁶⁷⁵ her raft into the stranded raft. Id. The plaintiffs affidavit further stated that she never contemplated that the raft release covered such intentional acts, but only applied to ordinary negligence in the form of piloting errors associated with an ordinary rafting trip.

The trial court granted summary judgment based on the raft release. Id. On appeal, the Supreme Court of Appeals of West Virginia explained the law as follows: Generally, in the absence of an applicable safety statute, a plaintiff who expressly and, under the circumstances, clearly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct may not recover for such harm, unless the agreement is invalid as contrary to public policy. When such an express agreement is freely and fairly made, between parties who are in an equal bargaining position, and there is no public interest with which the agreement interferes, it generally will be upheld.

A clause in an agreement exempting a party from tort liability is, however, unenforceable on grounds of public policy if, for example, (1) the clause exempts a party charged with a duty of public service from tort liability to a party to whom that duty is owed, or (2) the injured party is similarly a member of a class which is protected against the class to which the party inflicting the harm belongs. ^ }■« if: In order for an express agreement assuming the risk to be effective, it must appear that the plaintiff has given his or her assent to the terms of the agreement. Particularly where the agreement is prepared by the defendant, it must appear that the terms were in fact brought home to, and understood by, the plaintiff, before it may be found that the plaintiff has agreed to them. Stated another way, “to relieve a party from liability for his [or her] own negligence ⁶⁷⁶ by contract, language to that effect must be clear and definite.” 2 Moreover, in order for the express agreement to assume the risk to be effective, it must also appear that its terms were intended by both parties to apply to the particular conduct of the defendant which has caused the harm. To determine whether there was such intent, when the agreement is prepared by the defendant, its terms will be construed strictly against the defendant.

In particular, a general clause in a pre-injury exculpatory agreement or anticipatory release purporting to exempt a defendant from all liability from any future loss or damage will not be construed to include the loss or damage resulting from the defendant’s intentional or reckless misconduct or gross negligence, unless the circumstances clearly indicate that such was the plaintiffs intention. Similarly, a general clause in an exculpatory agreement or anticipatory release exempting the defendant from all liability for any future negligence will not be construed to include intentional or reckless misconduct or gross negligence, unless such intention clearly appears from the circumstances. These specific rules of anticipatory release construction are related to the general rule that “[a] release ordinarily covers only such matters as may fairly be said to have been within the contemplation of the parties at the time of the execution.” 3 Id. at 508-511 (citations omitted). After reciting these principles of law, the Murphy court observed that the West Virginia Whitewater Responsibility Act (Act) applied.

Id. at 511. According to the court, the Act’s purpose is to define those areas of responsibility for which commercial whitewater guides are liable for injury, in ⁶⁷⁷ light of the fact that it is impossible to eliminate the inherent risks involved in whitewater rafting. Id. The court further stated that the Act imposes certain duties on whitewater guides, recognizes liability for breach of these duties, and immunizes guides from liability for injuries resulting from the inherent risks of the activity “which are essentially impossible to eliminate regardless of all feasible safety measures.” Id.

One such statutorily imposed duty requires guides to conform to the standard of care expected from members of the profession. Id. at 512. Accordingly, the court held as follows: As stated previously, when a statute imposes a standard of care, a clause in an agreement purporting to exempt a party from tort liability to a member of the protected class for failure to conform to that statutory standard is unenforceable. Therefore, to the extent that the anticipatory release in the present case purports to exempt the defendant from tort liability to the plaintiff for the failure of the defendant’s guide to conform to the standard of care expected of members of his occupation, it is unenforceable.

Id. (citations omitted). Thus, because the plaintiffs experienced guide essentially opined in the affidavit that the defendant’s guide failed to observe the standard of care expected of members of his occupation during a rescue operation, a genuine issue of material fact was raised, and the trial court should not have granted summary judgment. Id.

Next, and more significantly, the court observed that the plaintiffs complaint “explicitly alleges that the defendant’s conduct was reckless, as well as negligent.” Id. As a result, the West Virginia high court stated: As stated previously, a general clause in a pre-injury exculpatory agreement or anticipatory release purporting to exempt a defendant from all liability for any future loss or damage will not be construed to include the loss or damage resulting from the defendant’s intentional or reckless misconduct or gross negligence, unless the circumstances clearly indicate that such was the plaintiffs intention. This rule parallels the rule that “[a] release is construed from the ⁶⁷⁸ standpoint of the parties at the time of its execution. Extrinsic evidence is admissible to show both the relation of the parties and the circumstances which surrounded the transaction.” 4 Id.

The court then recognized that contract construction is a matter for the court. Id. Where the meaning of a contract is uncertain and ambiguous, parol evidence is admissible to demonstrate the situation of the parties, the surrounding circumstances when the contract was made, and the construction that the parties give to the contract, either contemporaneously or subsequently. Id. at 512-13.

Where the parol evidence is not in conflict, the court must construe the contract. Id. at 513. Where, however, there is a conflict on a material point necessary to interpret the contract, the meaning of the contract is a matter for the jury. Id.

After reciting these principles, the court held as follows: In light of the inquiry needed here concerning the relation of the parties and the circumstances surrounding the execution of the anticipatory release in order to determine the parties’ intent with respect to reckless conduct of the defendant, the trial court improperly granted the defendant’s motion for summary judgment. “A motion for summary-judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” Accordingly, this Court reverses and vacates the summary judgment entered in favor of the defendant and remands this case for further proceedings consistent with this opinion. Id. (citations omitted) (emphasis added). There is a very critical aspect of Murphy that must not be overlooked.

The Supreme Court of Appeals of West Virginia held that the trial court improperly granted summary judg ⁶⁷⁹ ment on the recklessness claim, despite the fact that the raft release specifically stated that the plaintiff agreed “to hold [defendant] harmless from any and all liability, actions, causes of actions, claims, expenses, and damages ...,” and that the plaintiff agreed that the raft release “is intended to be as broad and inclusive as permitted by the law of the State of West Virginia.... ” (Emphasis added). It is relatively clear that the West Virginia high court held that summary judgment was inappropriate because the plaintiff generated a genuine issue of fact by her affidavit, which stated that she never contemplated that the raft release covered intentional acts, but only covered ordinary acts of negligence such as piloting errors associated with an ordinary ride on the river. In other words, despite the defendant’s obvious attempt to draft the raft release in a very broad and all-inclusive manner, recklessness was not covered because the plaintiff, by her affidavit, successfully raised a genuine issue of fact regarding whether such conduct was contemplated by the release. 5 Another important aspect of Murphy that must be kept in mind on this appeal is that Murphy necessarily considered the above-italicized language (preceding paragraph) of the raft release to be ambiguous. If it were otherwise, the West Virginia high court would not have remanded the case because it could have, as a matter of law, construed the contract—after all, the court expressly recognized that contract construction of an unambiguous contract is for the court.

At first blush the language of the raft release may not necessarily appear ambiguous. That the West Virginia high court determined that the raft release contained ambiguous language, however, is not surprising, in light of certain principles embodied in West Virginia law: (1) such releases will be construed against the ⁶⁸⁰ drafter; (2) the bargaining positions of the parties must be considered; and (3) the parties’ intention and contemplation regarding the- scope and coverage of the release must be considered. We further observe that, in Murphy, the West Virginia high court relied on Restatement (Second) of Torts § 496B (and various comments thereto) for many of the above principles of law relating to anticipatory