Hillerson v. Bismarck Public Schools, 840 N.W.2d 65

In 2008, T.D., a six-year-old, enrolled in a summer Extended School Program run by the YMCA, Bismarck Public Schools, and Mandan Parks with federal funding.
T.D.’s mother signed two release of liability provisions; T.D. did not sign; the form stated the program had no medical insurance and released the YMCA and BPS from liability, plus a field-trip/participation permission with similar language.
At Mandan Community Center pool in June 2008, T.D. nearly drowned, suffering hypoxic brain injury during the program’s supervision.
TD and Hillerson filed suit in 2011 against the YMCA and other entities for negligence; Bismarck Public Schools and Parks settled and were dismissed; YMCA moved for summary judgment arguing the waiver released liability.
The district court granted summary judgment for the YMCA in 2013, finding the waiver language nearly identical to a prior Kondrad decision.
On appeal, the North Dakota Supreme Court reversed, holding the waiver was ambiguous and created a question of fact, remanding for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does the waiver language clearly release liability for negligence	Hillerson argues the waiver is ambiguous and may not cover tort damages	YMCA contends the waiver clearly exonerates from liability for injuries	Waiver is ambiguous; creates a fact question; summary judgment improper
Was TD’s challenge to the waiver’s applicability to a child adequately preserved	TD contends the waiver may not apply to her child; challenged actions should be addressed	YMCA argues the issue was not properly raised; not preserved for appeal	TD failed to adequately plead non-application to the child; issue not considered on appeal
Should the district court’s grant of summary judgment be affirmed given ambiguity	Ambiguity precludes summary judgment and requires extrinsic evidence	Releases should be interpreted as written and preclude liability	Summary judgment reversed and case remanded due to ambiguity

Kondrad v. Bismarck Park District, 655 N.W.2d 411 (2003 ND 4) (unambiguous waivers exonerate for injuries; Kondrad distinguished)
Reed v. University of North Dakota, 589 N.W.2d 880 (1999 ND 25) (fraud/willful acts; waivers construed against policy)
Golden v. SM Energy Co., 826 N.W.2d 610 (2013 ND 17) (ambiguities in contracts create questions of fact)
Hunt v. Banner Health Sys., 720 N.W.2d 49 (2006 ND 174) (ambiguities in contracts create questions of fact)
Moen v. Meidinger, 547 N.W.2d 544 (ND 1996) (contract interpretation principles in ND)
Bendish v. Castillo, 812 N.W.2d 398 (2012 ND 30) (ambiguity and extrinsic evidence in contract terms)
Reed v. University of North Dakota, 589 N.W.2d 880 (1999 ND 25) (public policy considerations and waivers)