284 P.3d 1181
Or. Ct. App.2012Background
- Plaintiff interned at defendant chimpanzee sanctuary; signed waiver releasing liability for death, personal injury, or property damage arising from participation, including negligence.
- Intern manual includes disclaimer allowing defendant to change policies without prior notice and a general acknowledgment that policies are not a contract of employment.
- Plaintiff was told she would not have physical contact with chimpanzees; she signed the release before arriving at the sanctuary.
- Ten days after starting, a chimpanzee attacked plaintiff while cleaning a cage; she sued for negligence and strict liability.
- Trial court denied partial summary judgment on the release; later, defendant moved for summary judgment arguing the release precludes claims; court granted.
- Court held the release was enforceable, cured by defendant’s on-site performance (entry onto sanctuary) and rejected retroactive-disclaimer argument; plaintiff’s gross-negligence theory failed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the release enforceable despite a disclaimer allowing policy changes? | Release illusory due to change-rights in manual. | Consideration exists; performance cures mutuality; disclaimer merely notes at-will terms. | Yes; contract binding; disclaimer does not render release illusory. |
| Did defendant’s performance cure any initial lack of mutuality in the contract? | Initial illusory promises defeated mutuality. | Performance by allowing intern onto premises creates valid consideration and cures defect. | Yes; subsequent performance cured mutuality and formed a binding contract. |
| Does retroactive disclaimer language render the promises illusory? | Footer disclaimer allows retroactive changes to existing employees. | Disclaimer prospective only; cannot retroactively defeat existing agreement. | Retroactive-effect reading rejected; disclaimer prospective, not retroactive to release. |
| Does the release bar a gross-negligence claim? | Release may not bar gross negligance; evidence supports gross-negligence claim. | No evidence of gross negligence; standard requires recklessness; evidence insufficient. | Court grants summary judgment for defendant; no gross-negligence claim shown. |
Key Cases Cited
- NW Gas Supply v. Domestic Gas, 245 Or 171 (Or. 1966) (contract formed via conduct when performance occurs; no illusory promise)
- Ferguson v. Ferguson, 470 NYS2d 715 (N.Y. Sup. Ct. App. Div. 1983) (mutuality may be cured by party performance)
- Flagship Resort Dev. Corp. v. Interval Int., Inc., 28 So.3d 915 (Fla. Dist. Ct. App. 2010) (post-execution conduct can sustain contract viability)
- Petersen v. W. Mich Cmty Mental Health, 2012 Fed. Appx. 0384N (6th Cir. 2012) (execution may create binding contract despite later concerns)
- Rauch v. Stecklein, 142 Or 286 (Or. 1933) (gross negligence requires indifference to safety; recklessness standard)