*1
Michael L.
and Rachel
JORDAN
DIAMOND
&
EQUIPMENT
SUPPLY CO.
04-1113
Supreme 28, 2005 delivered Opinion April denied [Rehearing 2, 2005.*] June * Hannah, IMBER, C.J., JJ., and Glaze and grant rehearing. would *4 Stroud, Firm, Blair H. David Blair and The Nixon Law by: & by: Nixon, David for G. appellants. Firm, Nebben, L.
Bassett Law Curtis by: appellee. from the This case arises from an order Gunter, Jim Justice. Benton Court a motion for sum- Circuit County granting & Co. filed Diamond mary Equipment Supply judgment appellees, action a (“Diamond”) brought by appellants, personal-injury R. and We affirm the trial court’s Michael Rachel Jordan. Jordan ruling. 31, 2001,
On October Michael L. who is appellant Jordan, in the business construction and engaged light landscaping, involved in on the aof customer. landscaping project premises The loose materials project required appellant transport aof so he went to Diamond to rent a Bobcat top skid-steer Model 763 slope, (“Bobcat loader”) loader for this Diamond purpose. in the business engaged various items renting leasing Diamond, and tools to the While at equipment public. Jordan the advice from Diamond as to sought personnel appropriate task, information, machine for the and based on that elected Jordan to rent the Bobcat loader and a trailer for one entered day.Jordan into a contract with Diamond for the of the Bobcat loader leasing and the trailer and a rental which contained an signed agreement, clause. the invoice and fee paid Jordan $185.87 for the totaling lease of the one-day period. loader, That same after day, Bobcat obtaining Jordan
returned to his the course of his landscaping During project. job, the Bobcat loader became and overturned top-heavy backward result, several times down the flipped terrain. As a sloped suffered a severe to his which caused impact spine, perma- nent spinal-cord injuries. 12, 2003, wife, Rachel, On May his brought 26, 2003, action Diamond. negligence against On Diamond June answered, 23, and on Diamond filed a April motion for summary judgment, under Ark. R. Civ. P. arguing trial court should rule as a matter of law in favor Diamond. 4, 2004, On May responded Diamond’s Jordans motion for summary that the judgment, arguing language clause “does not Diamond from the of its exculpate consequences own in connection with its acts and omissions in connection with the rental of the Bobcat . loader . . [.]” contended that the in the does not provision Jordans Diamond from the failure to exculpate instruc- provide adequate tions and and that the warnings, is void for lack agreement mutuality further obligation. They alleged provision consideration, void for lack of and that the boilerplate language violates public policy. *5 11, 2004, On May filed a first amended and substi- Jordan tuted complaint to upon theory (1) failure take into account of the advising machine for the appropriate Jordan it; to use he intended under which circumstances and conditions safe as to the operating instruct failure (2) adequately Jordan could be which the machine and conditions procedures charac- of the stability to advise failure (3) safely operated; Jordan in distribution of the difference and of of the machine teristics conditions; failure (4) unloaded in loaded versus bias weight unsuited for use of loading loader was that the Bobcat warn Jordan surface, have which could an inclined materials upon or unloading Diamond; warn failure to (5) anticipated by been reasonably use, loader was suitable for including that the Bobcat surfaces; flat and (6) relatively loading unloading, only its as to the and educate proper failure to instruct personnel of the loaders and stability of skid-steer procedures operating damages past characteristics these machines. sought and future medical expenses, and future mental anguish, pain, past time, and future and working impairment loss of earning past past earning permanent physical impairment capacity, wife, for loss of His Rachel sought damages disability. Jordan, consortium. 14, 2004, order was filed on with dismissing
An May defendant Clark manufacturer prejudice separate Equipment, Bobcat, unit, its business Bobcat including unincorporated Company. 28, 2004, court an On the trial entered order granting June
Diamond’s motion for
filed
judgment.
summary
Jordans
6,
order
motion to amend the
summary judgment
July
granting
court
that motion. From the order
and the trial
denied
bring
granting summary judgment,
appeal.
Jordans
We articulated
standard of review for summary-
Mackool,
casesin O’Marra v.
Summaryjudgment grantedonly to be there are no issuesof materialfact and the genuine litigated, is entitled a matter of law. Riverdale party judgment Develop 90, 146 Inc., v. Systems mentCo. 356Ark. S.W.3d852 Building Ruffin Elec. v. 352Ark. (2004); Craighead Coop. CraigheadCounty, Corp. 177, 76 Laws, (2003); S.W.3d414 Colev. 349Ark. S.W.3d878 for summaryjudgment The burden motion (2002). sustaining 327Ark. responsibility movingparty. Pugh Griggs, 577, 940 (1997). S.W.2d445
148
Once the
has established a
moving
entitlement
party
primafacie
to summary
the
must meet
judgment,
non-moving
with
party
proof
and
proof
demonstrate the existence of a material
Id.
issue of fact.
review,
On
we determine if
appellate
summary
judgment
based on whether the evidence
the
appropriate
by mov
presented
of its motion
ing party
support
leaves material fact unanswered.
Inc.,
206,
v.
George
337 Ark.
Hosp. Ass’n
court should have denied the enforcement of the exculpatory clause Diamond’s grounds public policy. In Diamond contends that response, clause is enforceable, conforms to Arkansas and the trial public policy, court properly upheld clause. 28, 2004, trial court ruled in its order: June The warranties and the back side of the paragraph
one document is page an exculpatory clause which strict requires scrutiny by this court. In performing that court has scrutiny, looked at the location of the the fact paragraph; paragraph is set and is apart conspicuous; language used in paragraph is clear and unambiguous; in the sets out what liability is to be negligent avoided in very clear the circumstances language; the execution of surrounding this contract defendant, which involved the plaintiff approaching Diamond Equipment Supply Company, the use of soliciting equipment, sum paying fairly meager for the rental of the equipment. the factors set applying forth in v. Finagin ArkansasDevelop- mentFinance Authority,... court finds that Mr. knew the released,
potential liability that was
he benefitted from the activity
causing
(he
the liability
was being
for this
paid
job);
landscaping
and the contract was
entered
fairly
into.
An
contract
is one where a
seeks to
party
absolve himself in advance of the
of his own
consequences
negli-
gence.
v.
Arkansas
355 Ark.
Finance
Finagin
Development
Authority,
440,
149
Wilbur,
v.
Plant
the law.
favored by
are not
for negligence
301
Bank
487,
Farmers
Perry,
(2001);
47 S.W.3d
345 Ark.
Food
v. Frozen
& Sons
Middleton
645 (1990);
787 S.W.2d
Ark.
Power &
Arkansas
Lockers,
(1972);
Inc., In 724 (1998), supra. Wackenhut was guard by Corporation security employed Edgin, While on the at nuclear in London. job, to work Entergy’s plant suit in tort and she filed sustained injuries, security guard with Wackenhut Her agreement against Entergy. employment clause, “I which read in contained an pertinent part, make I have to and forever release rights might waive hereby of Wackenhut suit client or customer claims or against any bring . . are covered under . based which for damages upon injuries statutes.” We held: Workers’ Compensation case does not that the in this argue agreement Appellants is be out what to avoided. We negligent liability set specifically that the agree- are disagree. by Appellee’sargument We persuaded only releases the clients ment is clear and unambiguous sustained injuries by from for work-related Wackenhut workers’compensa- that are covered by Wackenhut employee an employee By signing employment application, tion statutes. any compensation his or her receive forfeiting right rather, agreeing injuries; merely work-related employee of Wackenhut ex- a client against an additional remedy waive change for with Wackenhut. In this employment we cannot respect, say agreement violates public policy discouraging or its clients from exercising reasonable care. Nor can we employer say that the of the agreement did not what language clearly identify was employee giving up exchange employment. instead, is, is not employer attempting escape liability entirely,but to shield its clients attempting tort separate liability for those injuries that are covered by workers’ unlike compensation, agreements at issue in FarmersBank and Firstbank.
Furthermore, our of this interpretation is not incon- agreement sistent with the sound public considerations that policy form the basis our workers’ laws. compensation Thus, we held that Edgin, supra. clause at issue set out what specifically to be negligent avoided and that was clear and Id. unambiguous. Plant, Plant an supra, appellant before *8 area of a racetrack entering pit Wilbur. operated The by appellee document, which was a form used racetracks across the by country, titled, “Release and Waiver ofLiability Indemnity Agree- ment.” enforceable, We held that the clause was noting “releases,” contained certain such as key phrases “discharges,” sue,” “covenants not to and mentioned claims for in three different the “total places. transaction” taking approach, we affirmed the trial court’s consideration of the circumstances document, the execution of the surrounding such as the fact that Plant had occasions, the document on other was not forced document, to and had sign equal We also bargaining power. considered the fact that the involved was recreational activity nature. Id. Further, in our clauses, review of we outlined three factors in where we said: Finagin, supra, note that an exculpatory may clause be enforced: (1) [W]e
when is party of the knowledgeable that is potential liability released; when the (2) is party from the benefitting activity which released; may lead to the potential that is liability and when (3) contract that contains the clause was entered fairly into. Id. Under the we must foregoing authority, construe the strictly Diamond, contract we against must ask whether
Diamond sets out what clearly is to be avoided. negligent liability clause in factors to the Finagin also must We apply if it is enforceable. to determine in order agreement Diamond’s and Dia- between to the turn We now entitled, the following It contains mond. and provides: and Liability,” “Warranties is not responsible Inc. Supply, Rental Diamond Equipment whether of these items the use or sustained damages for injuries failure, or other any to mechanical neglect, are due the damages whatsoever, be operating of who regardless happens cause the time the full from lessee assumes equipment. the items The lesseeaccepts is rented until it returned. equipment lessors absolve and reheve hereby is” and does the “as condition from the condition resulting reason or liability by from any lessorsfree himself hold rented items. Lessee binds and obligates of third from claims any and all any and harmless or use of or out of the condition in connection with arising persons by items listed in this contract rented items. made to Any repairs respon- or shall be the sole other than a lessor its employee anyone lessee, repairs unless written said authority sibility Inc. and Supply, Diamond Rental granted by Equipment clear, Here, of the excul unambiguous “is or clause states that Diamond injuries responsible patory in the use of these items whether damages sustained damages failure, whatso mechanical other cause are due to any neglect, ever, be of who regardless happens operating equipment.” it is not liable for sus Diamond states damages specifically due to the use of the lessee tained its during failure, or cause whatsoever.” mechanical “neglect, *9 transaction” as articulated Under a “total approach, Plant, Diamond’s business we note that solicited supra, Jordan the his landscaping about appropriate equipment inquiring how to instruction from Diamond personnel getting project, loader, the Bobcat the paying signing agreement, operate a trailer for Bobcat loader and $185.87 in the renting exchange one day.
Moreover, in the all three factors are satisfied Finagin First, that was knowledgeable case. present appears Jordan he the contract with that is released when signed potential of not front of the invoice contains price Diamond. The only reads, the rental but a statement that “Customer has equipment, instructions,” received which safety initialed. complete Jordan reads, Another statement on the front of the invoice “See Damage waiver,” Waiver on Reverse Side. I hereby accept damage initialed the line. this “yes” agreement. Jordan Jordan Second, benefitted from the activity leasing Jordan Bobcat loader and trailer in that the him equipment helped his used the perform job. for the equipment purpose Jordan on the completing of his job landscaping day injury.
Third, it
that the contract
appears
was entered into
fraud, duress,
offered no
fairly.
evidence of
undue influ
Jordan
ence,
mistake,
lack of
mutual
or
conduct
capacity,
inequitable
sufficient to void the contract.
there is no evidence
Additionally,
that
the terms of the
attempted
contract.
change
Jordan
sum,
of Diamond’s
is
clause
exculpatory
written in
and clear terms that are free
simple
It
legaljargon.
is not
As an
inordinately long
full-
complicated.
experienced,
contractor,
time
admitted in his
landscaping
that
deposition
he
intended to rent
to enable him to
piece
his
and that in
complete
job,
his discussions with Diamond
instructed him
personnel,
how to
they
Bobcat loader.
operate
discussions,
After those
Bobcat loader.
he entered into an
to rent the
is
Ultimately,
bound to know the contents
of the contract that he
Co.,
Carmichaelv. Nationwide
signed.
Ins.
Life
153
Archer,
Foods, Inc. v.
mutual
Tyson
and (5)
obligations.
agreement,
681,
have
We
142,
(2004).
684
136,
147 S.W.3d
Ark.
356
that an
means
obligation
of contract
mutuality
recognized
in
be done something
to do or
on each
permit
rest
must
party
other; thus, neither
party
of
of the act or promise
consideration
Ark.
Barnes, 349
Placev.
The
are bound.
Money
unless both
is bound
Cashers,
v.
Inc.
Check
411,
(2002); Showmethemoney
714
78 S.W.3d
contract,
112,
A
361 (2000).
27 S.W.3d
Williams, 342 Ark.
therefore,
with one
parties
that leaves
entirely optional
be
would not
his
he will
promise
or not
perform
whether
Indus., Inc.,
Id.;
v.
also
Standard
other.
see
Townsend
on the
binding
951,
(1962).
Diamond cites Guinn mutu- for the (1989), following regarding S.W.2d 30 proposition of ality obligation: mutu a contract does not validity alwaysdepend upon of of obligation ordinarilyrequired of
ality
Mutuality
obligation.
and each
partiesexchange promise
promise,
contracts where
It becomesa nonissuewhen
must be bound or neither is bound.
one
A
parties.
otherwisebeen
considerationhas
of
conferred
mutuality
of
does
promise exchange
performance
require
510,
v.
Ark.
the leased for a hours in order to twenty-four period fulfill his for the Because the responsibility landscaping project. of the lease between and Diamond validity agreement Jordan both of the depends upon performance by parties, mutuality becomes a nonissue. obligations For their third on that the point appeal, argue Jordans clause was not consideration. supported by Specifi- Co., cally, AllstateIns. 78 Jordans, citing Ark. Capel App.
exculpatory the from the contract. Specifically, make the that because of the argument size and type Jordans invoice, on the back of the in addition to placement was “a the fact that it buried in the on the reverse provision side of an boilerplate transaction,” invoice issued in a routine the agreement lacks “the degree considered a conspicuity justify being as matter of law an indicator objective agreement. Jordan’s
haveWe
said that one is bound under the law to know the
contents of the
he
and he
signs,
cannot excuse himself
papers
that he did not know what the
saying
contained. Carmichael
papers
Co.,
v. Nationwide
Ins.
court erred terms provision expressly determining issue, described the that was to be avoided. On this liability in the clause sets trial court ruled that “the language exculpatory is to be avoided in clear lan- out what negligent liability very guage.” one,
As discussed in
we have held in
point
Edgin, supra,
Plant,
that those
clauses were valid. In
supra,
exculpatory
Edgin,
we concluded
not
that the
was
supra,
employer
attempting
it
but that was
shield its
liability entirely,
escape
attempting
are
clients from
tort
for those
that
covered
liability
injuries
separate
Plant,
workers’
we held that
by
compensation. Similarly,
supra,
an
racetrack owners
for
from
releasing
injuries
agreement
liability
sustained in the
area of a
restricted
racetrack was valid. See also
v.Miller
In the we hold that the trial court’s present Here, is correct. Diamond’s lease states that it “is ruling or sustained in the use of responsible injuries these damages items failure, whether the are due to mechanical damages neglect, whatsoever, or other cause any of who to be regardless happens assumes full operating from equipment. [Jordan] time the is rented until is returned.” This language releases Diamond from due to any injuries “neglect, failure, mechanical cause whatsoever.” Based has failed analysis, to offer with fact- proof proof exists, as the question contem his for which Diamond plate seeks to avoid liability. reasons, For these we affirm on this point. For their sixth point appeal, argue Jordans clause is unconscionable. contend Specifically, they
that there
ais
of material fact on this issue.
question
of their
cite Ark.
support
argument,
Code
Jordans
Ann.
4-2A-103
-108
2001).
(Repl.
Unconscionability
§§
originated
an
doctrine. See 1 S. White & R.
equitable
Summers
*13
CommercialCode 4-2
ed.
(3d
1988). The doctrine has
§
Uniform
been
in law courts in this state at least since
applicable
the adoption
of the Uniform
1961,
Commercial Code in 1961. Act 185 of
bar,
2-302. In the case at
is
doubtful at best that Ark. Code
§
Ann. 4-2-302 is
because
2 of
strictly
Article
applicable,
Code
§
to transactions
ordinarily
only
in
Ark.
applies
Code
goods.
Ann.
Nevertheless,
4-2-102.
the Code section on unconscionability
§
has
been
in
frequently
non-code
applied by analogy
See
settings.
Restatement
Contracts
(Second)
208 comment a (1979).
§
We have stated that in
whether a
assessing
con-
particular
unconscionable,
tractual
is
provision
courts review the totality
of the circumstances
surrounding
and
negotiation
execution
Union,
the contract.
Co.,
National
State v. R A
supra (citing
& Inv.
289,
Here, we have determined that already exculpa clause was available for tory to read when he Jordan Further, initialed the we have agreement. no evidence before us considering of bargaining power, was gross inequality that there for of Diamond paid out the services that sought do Nor we it. how to operate after shown being rental on the question with met proof find where proof document, it at issue. By signing the provision comprehending that he did. appears of Finagin, analysis light
Based foregoing of review standard regarding as well as our well-established supra, that the trial court we hold judgment, motions for summary Ac motion for summary judgment. Diamond’s granted properly we affirm. cordingly, and Glaze dissent. C.J., JJ., Imber,
Hannah,
Over the
Justice, dissenting.
Imber,
Annabelle Clinton
has crafted
course of the last one hundred
this court
years,
clauses.1In the most
a consistent doctrine of disfavor for exculpatory
cases,
to this
court
carved
limited
recent
has
out
exceptions
disfavorwhere
overall negative impact
public policy
general
while
mitigated.
majority
purportedly espousing
opinion,
our
fine of
the harmful nature
cases
long
emphasizes
contracts,
overrules those cases.The
effectively
opin-
ion takes
that has far-reaching negative consequences
position
does not
our
and is founded
correctly
public policy,
apply
precedent,
clause and
challenged
misinterpretation
must dissent.
law. I
misapplication
For over
this court has
sixty years,
analyzed exculpatory
contracts in
of their effects on
in the
light
public policy.
Kerr,
case of ArkansasPower&
Co.
204 Ark
161 S.W.2d
Light
stated,
we refused to enforce an
clause and
(1942),
“A consciousness that failure to exercise due care will require
compensation
injury
person
property
productive
control rest the
caution and
those
whose
forethought
at
at
cause
Id.
404.
may
*14
agencies
damage.”
the
Our concern for
public
exculpatory
policy implications
clauses has continued
our
decisions. In Plant
through
present-day
Wilbur,
487,
we reiterated that
v.
345 Ark.
1 See Co. 90 Ark. Gulf contracts that a from because of the exempt party liability, public- 493, concern the exercise of care.” Id. at policy encouraging S.W.3d 893.
Furthermore, in
the
clauses
deciding
validity
exculpatory
our court has
consideration of “the facts and
required
thorough
circumstances
the execution of the release.”
v.
surrounding
Finagin
Auth.,
440, 455,
797,
ArkansasDev. Fin.
335 Ark.
circumstances,
Under
(2003).
some limited
the court has been
to enforce
willing
clauses after a
exculpatory
determination
the circumstances are such that the
clause
does
the
discourage
use
care. In
ordinary
the
Finagin,
clause was executed
in
of a
guarantor
favor
lender. We
observed that there was no evidence that the
were
guarantors
businessmen, or that the
unsophisticated
were entered
agreements
thus,
into
enforcement of the
unfairly,
clause was
458,
Moreover,
allowed. Id. at
Finally, think policy of public encouraging careful behaviorthatunderliesthe disfavorforsuch has exculpatory clauses
159 case, negligent where the allegedly the in present little application and, husband, of the vehicle driver was the party, appellant’s than to drive carefully reasons more compelling therefore had far tort liability. the avoidance of possible court 55, additionally In the Miller 554. its analysis, Id. at lease, including the the circumstances surrounding examined the and knew with her husband ridden had previously appellant knew and that the in parties involved the trucking operation, dangers result, activities, a the these and as result from could injury the to cover insurance appel- additional required passenger company lant’s injuries. the excul- in This court reviewed similar factors upholding Plant, the Wilbur, the Plant v. In clause in case of supra.
patory Plant, watch- was debris while Robert injured by flying appellant, the track. Before auto race from the area entering an pit ing track that released the an Plant signed pit, the relea- caused from all “whether by is in the restricted sees otherwise while or undersigned or for, area, in, working and/or officiating observing, competing, 490, Id. at 47 event.” S.W.3d any purpose participating track, the track Mr. Plant suit 891. When brought against that the release excused moved summary arguing judgment, we The trial court liability. granted summary judgment, In affirmed its decision. the grant summary judg- upholding ment, circumstances surrounding this court focused the specific release, recreational nature of including dangerous First, we affected the clause. the number people activity ex- fact that release was significant emphasis placed a Id. at “in the context of recreational activity.” ecuted dangerous, noted, S.W.3d at 893. The court a with
More as Plant was familiar certainly importantly, participant, fact, auto he admitted racing. inherent dangers sport racing witnessed numerous wrecks that occurred during having par- With this Plant continued knowledge, voluntarily events. activity. in this ticipate that the reach of these
Id. at
S.W.3d at 894. We also noted
narrow
limited
involve
“they
very
clauses
fairly
scope,
rather than situations
involving
utility,
segment
public
public,
carrier,
with the
or a similar
connected
common
entity
public
Id. at
The is rationale in Plant from adopted easily distinguishable the case at hand. the Unlike which is auto-racing activity, purely recreational, of at issue here is an of activity type integral part livelihood; is, Mr. it that involves his means of making Jordan’s We the trial court’s living. that this approved finding recognized distinction in Plant: I don’t find that this is of in which the type enterprise courts —them,
have that is to let acknowledged in other improper words, an to that have like enterprise people rely upon public transportation other where types enterprises neces- people have to to life and sity go just get through conduct business regular activities, ... his making living. is recreation.
Id. at
Moreover, Miller, unlike in the cases of the lessors Edgin have machinery minimal motivation only outside of the threat to exercise The liability care. ordinary still employers Edgin faced for their potential to the liability negligence pursuant work- ers’ statutes and were compensation relieved from the only impo- such, sition of additional their motivation to act liability; with due care Miller, and avoid be would still In significant. wife the release could be signing well-assured that her fairly husband, who, aas representative company, being released from Thus, had her best interests in mind. liability, he would continue to exercise reasonable care where she was con- harm, cerned to her from even without keep threat of liability. case, In the once Diamond is released from present customers, harm to its it has no motivation to maintain significant its and business in a that reduces machinery the risk of harm to way Instead, others. Diamond can without to who is operate regard put fear of any legal repercussion. and without its at risk by negligence, care is view, lack of due unacceptable such a encouraging In my not be allowed. and should deviates at bar radically the case treatment of
The majority’s disfavor of of caution traditional course our court’s the notions of strict still clauses. While echoing created a test disfavor, has the majority construction and general does not situation all too overcome. present easy factors found mitigate general any involve previous clauses; new indicia nor does it present disfavor clauses will nega- of similar enforcement suggesting fact, of this the potential application impact policy. tively public citizen of effects on case has negative virtually every sweeping *17 like broad clauses The enforcement of and vague exculpatory state. care and idea of ordinary the at issue here erodes the very one to for an for entities who seek avoid liability easy escape provides their negligence. the that enforcement of exculpa- rightfully suggests overrule our cases such clause in this case will
tory
effectively
past
Inc.,
454
as
v.
Farmers
DessertSeed Co. Drew
Supply,
and FarmersBank
S.W.2d 307
ArkansasPower&
(1970),
Light,supra,
For
Ark.
(1990).
Perry,
example,
Co.,
sent
the
Dessert Seed
a seed distributor
the
seeds to
wrong
to
but then
claim
from suit based
grower
immunity
attempted
the
to
an
clause contained on
seed
We refused
tag.
exculpatory
the
that “the law should
uphold
noting
encourage
agreement,
the
To
‘caution
the
of
forethought’
part
[distributor].
the
would be more
clause
the contract
likely
uphold
negligence
the
result.” Id. at
Instead of cases, arguments distinguishing addressing Jordan’s reaffirms the traditional notion these the majority merely must least that to avoid “the contract at negligence, However, be avoided.” set out what clearly negligent a careful examination the shows that the majority opinion Diamond clause the does meet burden of requisite states, “we must ask whether Diamond clarity. majority avoided,” out sets what is to be but then clearly negligent liability fails to provide any persuasive analysis explaining precise scope of the clause. The continues to majority simply quote vague clause, and inconclusive as if its will language meaning Further, become clear with It does as not. repetition. support clear, the conclusion that the of the scope states: majority contractor, anAs full-time admit- experienced, landscaping ted his that he deposition intended to rent a piece equipment to enable him to complete job, his and that in his discussionswith Diamond instructed personnel,they him how to the Bobcat operate loader. This statement is a red majority herring. subjective Jordan’s
level of about the he was knowledge renting provides no information absolutely on the clause. The scope clause determines who is released and scope from what liability; contract, same clause is used in assuming each will be the same. The issue of scope whether of the clause is scope clear is an into the actual objective clause. See inquiry Thus, Bank, Farmers instead of the central supra. analyzing questions who is released from what delves into the merits liability, majority action, instruct, underlying failure negligent support *18 the clause. But whether upholding should succeed ultimately Jordan concern; on his claim is not our arewe to decide whether the only is clause enforceable as to so bar cause of completely any Here, action for Diamond. we arrive at the negligence against back but question never originally answered posed majority: whether Diamond sets out what to be clearly is negligent liability In of avoided. failure light to majority’s complete provide any clause, to the of the explanation scope ambiguous exculpatory answer must be no. This no meets that test and should way not be Wilbur, enforced. Plant v. Farmers Bank v. supra; Perry, supra. holds, The further albeit majority that no erroneously, of fact exists on the issue of question whether had knowl- Jordan of the edge he released in the with potential liability contract conclusion, Diamond. of this that *19 that show a virtual if a was all was become nullity signature required Instead, the should include “whether signor] knowledge. analysis [the he read and that was a reasonable comprehend given opportunity Plant, a waiver of 345 Ark. at signing complete liability.” case, at (Glaze, S.W.3d 897 In instant Diamond has J., dissenting). at evidence this of the outside presented stage proceeding, of the rental to establish signing agreement, that read and Jordan that was he a comprehended waiver signing complete liability. Moreover, the states that did not majority incorrectly Jordan offer that he was unaware of he proof released by the contract. To the his signing contrary, during deposition, was unable to for certain that he remembered say Jordan stated, clause on his He “There is exculpatory agreement. some- that has a lot of small on the thing I back of the contract writing that but I cannot signed, say specifically exculpatory [the clause] Where, here, would have been on the back.” evidence only offered Diamond in by clause is the fact support exculpatory the rental I believe agreement, foregoing Jordan statement to raise issue of material enough genuine was, fact, fact as to whether “knowledgeable released.” potential liability Arkansas Dev. Finagin Fin. Auth., reason, 355 Ark. at at S.W.3d 808. For that if for other, no the circuit court erred in granting summary judgment favor of Diamond. short, the majority no on the opinion provides clarity issue of the enforcement of clauses. majority fails to determine the
wholly Diamond scope clause, and then to avoid this failure attempts by making fact that in to the public-policy-style merits of the argument goes event, case. In our approach tradition rejects analyzing separately questions clarity scope public policy. broad, Because uses instead majority sweeping here, issue clause at this case analyzing will have far-reaching Henceforth, and disastrous clauses will consequences. no be disfavored or longer construed strongly strictly against Instead, on them. parties relying relevant only will be inquiry whether not the been has Under such signed. system, clauses will become favored and broadly construed, few, if will ever be any, declared unenforceable. reasons, all of
For the above-stated I dissent. respectfully C.J., J., join. Hannah, Glaze, notes support majority initialed the line “I “yes” stating, hereby accept damage Jordan however, mention, is that the fails to the majority What waiver.” states, waiver” clause actually “limited damage waiver, and takes limited damage If has to agreed purchase customer uses items and them to rented safeguard allreasonable precautions manner, assumes the Diamond Equipment and responsible safe to due to accidental damage loss or damage risk direct physical of in the circumstances: following except rental equipment Loss, circum- and tubes under or failure of tires 1. damage stances. overloaded, the rated above operated capac- 2. If is equipment over, are not if and instructions safety rolled or operating ity, followed. regarding to Diamond 3. If customer fails contact Equipment but with- servicing including maintenance and of equipment, lubrication, limitation, of filters when required, change out water, air, oil, or fuel or pressures maintenance of adequate levels. or or care If results from unsafe damage operation 4. improper incompetence, whether caused lack by negligence, training other to person of the customer’s or infidelity employee * * * * Damage rented items are entrusted. waiver whom while in renter’s possession. does not cover theft equipment waiver” clause to the issue the “limited applies only Clearly, damage to who is the rented for damage responsible Hence, for the whether Diamond injuries responsible Jordan. that initialed of this clause is irrelevant fact utterly acceptance Jordan clause. our “Warranties Liabilities” analysis that knew he was other cited by only “proof’ majority of all is the fact signed Diamond releasing First, I must with idea rental contract. disagree fundamentally more, had mere without show signature, enough party Indeed, as the he released. knowledge potential liability thereby documents, contracts are great majority released” would “knowledge Finagin requirement