MEMORANDUM
To:
From:
Subject:
Date:
Gail Mullins
Brittany Brown
State v. Whitten; felony larceny
September 19, 2021
QUESTION PRESENTED
Will the exculpatory agreement Melissa Moreno signed on behalf of her
daughter Meghan Moreno bar an ordinary negligence claim against Wild Animal
Safari LLC?
BRIEF ANSWER
Probably no. The state can meet its burden to prove beyond a reasonable
doubt that Whitten found lost property and appropriated that property to her own
use. The state will also be able to prove Whitten had “knowledge or means of
inquiry as to the true owner,” and she failed to make “reasonable and just” efforts to
restore the property to the owner. Whitten found the ring in a small office building
that also housed a yoga studio. That fact, coupled with the fact that two women
wearing yoga clothes exited the restroom just as Whitten entered, gave Whitten
“means of inquiry as to the true owner.” She could easily have gone to the yoga
studio and posted a notice about the lost ring or left her number in case someone
later inquired as to whether a lost ring had been found. In addition, Whitten’s
efforts to restore the property to its owner by merely posting a single message on a
city Facebook page noting that she had found a lost ring was an insufficient effort to
restore the property to the owner because she had information that would’ve
allowed her to take additional steps.
Dean Mullins
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STATEMENT OF FACTS
On June 18, 2021, Melissa Moreno signed a release for her minor daughter
Meghan Moreno to be able to participate in a photoshoot with her pom squad at
Wild Animal Safari. The photoshoot included taking pictures with George the tiger.
Once on location the owner, Johnny Strayhorn, led the girls into an enclosure and
arranged them for the photoshoot. He then brought George in and sat him down 10
feet in front of the squad, announcing that there was no risk. Johnny’s wife Janil
proceeded to take pictures. The photoshoot went as planned, George was guided
back into a different enclosure, and Janil began taking individual pictures of each
girl holding a baby white tiger. Following this, Johnny unexpectedly announced
that George was in a “really good mood” and asked whether any of the girls wanted
a photo of George licking their hands. When Meghan took her place next to George,
who was being held on a chain by Johnny, the tiger unexpectedly jerked his head
back and knocked Johnny over. George then extended his left front paw and claws
into Meghan’s right thigh. Janil called 911 and Meghan was transported by
ambulance to the hospital. She underwent three hours of emergency surgery on her
leg and received four units of blood. The tiger’s claw ripped through her rector
femoris muscle and, although she is recovering, Meghan will need at least two
additional cosmetic surgeries on her leg and at least six months of outpatient
physical therapy. Melissa hopes to receive compensatory damages through a
negligence cause of action.
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DISCUSSION
The exculpatory agreement Melissa signed on behalf of Meghan will most
likely not bar a claim of ordinary negligence against Wild Animal Safari.
The Oklahoma Supreme Court recognizes exculpatory contracts as valid and
enforceable if the following conditions are met:
[1] their language must evidence a clear and unambiguous intent
to exonerate the would-be defendant from liability for the sought-to-berecovered damages;
[2] at the time the contract (containing the clause) was executed there must
have been no vast difference in bargaining power between the parties;
[3] enforcement of these clauses must never (a) be injurious to public health,
public morals or confidence in administration of the law or (b) so undermine
the security of individual rights vis-à-vis personal safety or private property
as to violate public policy
Schmidt v. United States, 1996 OK 29, 912 P.2d 871, 874.
It is uncontested that the contract was executed with no vast disparity of
bargaining power between the parties. When looking to ascertain the equality of the
parties’ bargaining power, courts must consider the importance of the subject
matter to the physical or economic well-being of the party agreeing to the release
and the amount of free choice that party could have exercised when
seeking alternate services. Id.
Getting a picture taken with George was neither necessary for the physical or
economic well-being of Meghan. She also had a great amount of free choice she
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could have exercised when seeking alternatives. She could have gone to another
safari, or even chose not to have her picture taken with George at all. Due to these
factors, it would likely be found that there is no disparity in the bargaining power
between the parties.
Meghan’s injury was not foreseeable by Melissa when she signed the waiver.
“A contractual provision which one party claims excuses it from liability
for in futuro tortious acts or omissions must clearly and cogently (1) demonstrate an
intent to relieve that person from fault and (2) describe the nature and extent of
damages from which that party seeks to be relieved.” Id.
To determine whether an exculpatory clause meets these requirements, it
must include the “identity of the tortfeasor to be released” and explain “the nature
of the wrongful act for which liability is sought to be imposed”. The act “must have
been foreseen by, and fall fairly within the contemplation of, the parties.” Id.
The waiver that was signed by Melissa did not contain any language that
would have caused her to foresee the tiger attack. When signing, she was under the
impression that Meghan would only be participating in a group photoshoot with
George. Even this activity was not described in detail within the waiver. It is likely
that someone signing the waiver would not have contemplated a tiger clawing
occurring, nor would they have assumed the waiver to be releasing Wild Animal
Safari for liability of such act.
The defendant in Manning also signed an exculpatory contract, and later
brought suit against the skydiving company that facilitated the jump after
sustaining injuries that resulted when parachutes malfunctioned. CITE The
contract was deemed enforceable because it described in detail “the nature and
extent of damages [the skydiving facility] sought to avoid in language any layperson
could understand”, which included the dangers of the activity and that it could
result in injuries such as death. This would mean that the injuries that happened
would have been foreseeable by the defendant because they were clearly and
unambiguously stated within the contract. This differs from the waiver Melissa
signed, because her contract contained no language that would have caused her to
foresee a tiger attack as an activity that Wild Animal Safari was seeking to escape
liability from.
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It would likely be concluded that the waiver signed by Melissa did not
contain any clear and unambiguous language that would have made the attack
foreseeable. Therefore, the first prong of the test set forth in Schmidt would likely
be seen as unmet. Because of this, the exculpatory agreement would be
unenforceable.
The exculpatory clause violates public policy.
When looking to whether an exculpation is contrary to public policy, courts
must consider if the release would:
(1) [I]njure public morals, public health or confidence in the administration of the
law and
(2) [D]estroy the security of individuals' rights to personal safety or private property
Id. at 875.
When considering whether to invalidate exculpatory clauses that contradict
public policy, “courts must do so only with great caution.” Id. As a matter of public
policy, in Oklahoma, it has been decided that the court has a duty to “guard with
jealous care the interests of minors in actions involving their rights and every
presumption is indulged in favor of the minor.” Gomes v. Hameed, 2008 OK 3, ¶ 23,
184 P.3d 479, 488. A requirement of this duty is that “an agreement to not sue …
negotiated on behalf of a minor … be investigated and approved by the court before
any substantial rights are waived”. Id. ¶ 30. The exculpatory clause signed my
Melissa was neither investigated nor approved by the court before waiving
Meghan’s rights, making it a contradiction of public policy as viewed by Oklahoma
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courts. Id. By violating public policy, the exculpatory agreement is invalid and
unenforceable. Id.
Similarly, the plaintiff in Wethington v. Swainson was a minor named
Makenzie who, along with her parents, signed an exculpatory clause stating that
they were releasing an airport center from liability caused by negligence or other
fault that may occur during a skydiving excursion. Wethington v. Swainson, 155 F.
Supp. 3d 1173, 1174.When Makenzie sustained injuries during skydiving, her
mother and her sought to recover damages based on a negligence cause of action. Id.
The defendants moved for summary judgement stating that the release absolves
him from any liability claims. Id. at 1176. The court emphasized that Oklahoma
recognizes its duty to protect minor children. Id. at 1178. It held that the release
signed by the Wethingtons barred her mother’s causes of action, however it did not
bar Makenzie’s own cause of action because agreements signed by parents on behalf
of their minor child is unenforceable. Id. at 1179-1180.
Much like the plaintiff in Wethington, Melissa signed the exculpatory
agreement on behalf of Meghan, who is a minor. It would likely be found that, due
to Oklahoma’s protection of minors, Melissa’s negligence cause of action against
Wild Animal Safari would be barred, but Meghan’s individual cause of action would
not be barred.
The Morenos are dissimilar to the plaintiff in Combs v. West Siloam
Speedway Corp. because public policy was not violated, making the exculpatory
clause signed by Combs enforceable, which bars his negligence cause of action.
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Combs v. W. Siloam Speedway Corp., 2017 OK CIV APP 64, ¶ 17, 406 P.3d 1064,
1069. The plaintiff was a spectator at an automobile racetrack and was injured
when a driver lost control of his vehicle, coming into the infield area where Combs
was located. Id. ¶ 1. Plaintiff brought suit against the racetrack, but the defendants
were granted summary judgement after the court found the agreement that was
signed by Combs released the defendants of liability. Id.
The main difference between Combs and Meghan’s occurrence is the aspect of
contradiction of public policy. In Combs the court held that enforcement of the
release in this case does not violate public policy. In contrast, courts have found as a
matter of public policy, minors are protected, and parents may not release a minor’s
claim. Wethington, 1178. Because of this, a court would likely find Meghan’s
exculpatory agreement void and unenforceable which would not bar her negligence
cause of action, contrasting to the outcome of Combs.
CONCLUSION
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