Morrison v. Northwest Nazarene University

IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 37850-2010

PAUL MORRISON, )
) Boise, February 2012 Term
Plaintiff-Appellant, )
) 2012 Opinion No. 52
v. )
) Filed: March 22, 2012
NORTHWEST NAZARENE UNIVERSITY, )
) Stephen W. Kenyon, Clerk
Defendant-Respondent. )
)

Appeal from the District Court of the Third Judicial District of the State of Idaho,
in and for Canyon County. The Hon. Juneal C. Kerrick, District Judge.

The judgment of the district court is affirmed.

John C. Doubek; Doubek & Pyfer, LLP; Helena, Montana; argued for appellant.

John A. Bailey; Racine Olson Nye Budge & Bailey, Chtd; Pocatello; argued for
respondent.

EISMANN, Justice.
This is an appeal challenging the district court’s ruling on summary judgment that the
plaintiff’s action for personal injuries suffered when he fell from a climbing wall was barred by
the hold harmless agreement he signed prior to engaging in that activity. We affirm the
judgment of the district court.

I.
Factual Background.
As a team building exercise, Paul Morrison’s employer wanted him and his coworkers to
participate in a program at Northwest Nazarene University that included a climbing wall activity.
Several days prior to doing so, Morrison’s employer required him to sign an agreement prepared
by the University holding it harmless from any loss or damage he might incur due to the
University’s negligence or that of its employees.
 Morrison was severely injured when he fell while on the climbing wall. He filed this
action alleging that his injuries were caused by the negligence of the University employees who
were supervising the climbing wall activity. One of Morrison’s coworkers was assigned to
control the safety rope used to keep the wall climber from falling, and Morrison alleges that his
fall was caused by the negligent failure of a University employee to train and supervise that
coworker.
The University moved for summary judgment on the ground that Morrison’s cause of
action was barred by the hold harmless agreement. The district court agreed and dismissed this
action. Morrison then timely appealed.

II.
Did the District Court Err in Failing to Invalidate the Hold Harmless Agreement
Due to the Inequality in Bargaining Power?
“Freedom of contract is a fundamental concept underlying the law of contracts and is an
essential element of the free enterprise system.” Rawlings v Layne & Bowler Pump Co., 93
Idaho 496, 499, 465 P.2d 107, 110 (1970). Agreements exempting a party from liability for
negligence will be upheld unless the party owes to the other party a public duty created by
statute or the other party is at an obvious disadvantage in bargaining power. Lee v. Sun Valley
Co., 107 Idaho 976, 978, 695 P.2d 361, 363 (1984).
In this case, there is no allegation of any public duty that the University owed to
Morrison. However, he contends that there was an obvious disadvantage in bargaining power
because his employer required that he sign the hold harmless agreement. The existence of
unequal bargaining power is not, by itself, sufficient to relieve a party from the provisions of a
hold harmless agreement. Rather, the party must be “compelled to submit to a provision
relieving the other from liability for future negligence [because] . . . the party injured has little
choice, as a practical matter, but to use the services offered by the party seeking exemption.”
57A Am. Jur. 2d Negligence § 63 (2004). It is essentially the same test for determining whether
unequal bargaining power between parties to a contract is sufficient to constitute procedural
unconscionability. See Lovey v. Regence BlueShield of Idaho, 139 Idaho 37, 42, 72 P.3d 877,
882 (2003) (“Lack of voluntariness can be shown . . . by great imbalance on the parties’
bargaining power with the stronger party’s terms being nonnegotiable and the weaker party

2
being prevented by market factors, timing, or other pressures from being able to contract with
another party on more favorable terms or to refrain from contracting at all.”)
In this case, Morrison stated in his affidavit: “My said employer told us before we went
to the team building exercises that I needed to sign the release in order to participate. All
employees were expected to participate and I signed it.” He also stated that he was not given the
option of refusing to sign the release and it was required by his employer. Morrison was not
injured by signing the release. He was injured by falling from the climbing wall. Absent from
his affidavit is any statement that he told his employer that he did not want to climb the climbing
wall and that his employer ordered him to do so anyway. 1
“With respect to adult participants, the general rule is that releases from liability for
injuries caused by negligent acts arising in the context of recreational activities are enforceable.”
57A Am. Jur. 2d Negligence § 65 (2004). The agreement that Morrison signed stated as a
separate paragraph: “The undersigned has read and voluntarily signs this release and waiver of
liability and indemnity agreement. The undersigned further agrees that no oral representations,
statements or inducements apart from the foregoing agreement have been made.” Morrison has
not demonstrated a genuine issue of material fact showing that there was an obvious
disadvantage in bargaining power sufficient to relieve him of the provisions of the hold harmless
agreement that he signed.

III.
Did the District Court Err in Ruling that the Hold Harmless Agreement Was Valid and
that It Applied to the Cause of Action Alleged in the Complaint?
Morrison contends that the hold harmless agreement is invalid because it is overly broad
and is ineffective to bar his claim because it does not clearly identify the conduct that caused his
injuries. “Interpretation of unambiguous language in a contract is an issue of law.” McDevitt v.
Sportsman’s Warehouse, Inc., 151 Idaho 280, 283, 255 P.3d 1166, 1169 (2011).
The agreement is entitled “Release / Hold Harmless / Indemnity / Assumption of Risk
Agreement,” and it states as follows:

1
We need not decide whether an employer’s demand that an employee participate in a hazardous activity would be
sufficient to void a hold harmless agreement between the employee and the third party that conducted such activity.

3
 Release: The undersigned, in consideration of being permitted to participate in
the Northwest Nazarene University Challenge Course Adventure Program, for
educational purposes does irrevocably, personally and for his or her heirs, assigns
and legal representatives, release and waive any and all past, present or future
claims, demands, and causes of action which the undersigned now has or may in
the future have against Northwest Nazarene University, its members, directors,
administrators, representatives, officers, agents, employees, and assigns, and each
of them (hereinafter jointly and severally referred to as “Releasees”), for any and
all past, present or future loss of or damage to property, and/or bodily injury,
including death, however caused, resulting from, arising out of or in any way
connected with his/her participation in or use of the Northwest Nazarene
University Challenge Course Adventure Program.

Hold Harmless/Indemnity: The undersigned agrees to defend, indemnify and
hold harmless the Releasees and each of them from any loss, liability, damage or
cost she/he might incur due to her/his participation in or use of the Northwest
Nazarene University Challenge Course Adventure Program whether caused by the
negligence of the Releasees or otherwise. The undersigned further covenants not
to cause any action at law or in equity to be brought or permit such to be brought
in his or her behalf, either directly or indirectly, on account of loss or damage to
property and/or bodily injury, including death, against the Releasees, resulting
from, or arising out of, or in any way connected with any claims, demands, and
causes of action which now or in the future may be asserted against the Releasees
arising out of or by reason of said course described above, including any injury,
loss or damage that might occur at any place in connection therewith.

Assumption of Risk: The undersigned further states and affirms that he/she is
aware of the fact that the aforesaid course, even under the safest conditions
possible, may be hazardous, that he/she assumes the risks of any and all loss or of
damage to property and/or bodily injury, including death, however caused,
resulting out of or in any way connected with the Northwest Nazarene University
Challenge Course Adventure Program; that he/she is of legal age and is competent
to sign this Waiver of Claims and Release of Liability; and that he/she has read
and understands all of the provisions herein contained. Risks include but are not
limited to the following: [a list of various types of actions that can cause injury
and various types of injuries].

Morrison contends that the hold harmless agreement is invalid because it is overbroad. It
exempts the University and “its members, directors, administrators, representatives, officers,
agents, employees, and assigns, and each of them” from “any and all past, present or future
claims, demands, and causes of action which the undersigned now has or may in the future have”
for all “bodily injury, including death, however caused, resulting from, arising out of or in any
way connected with his/her participation in or use of the Northwest Nazarene University

4
Challenge Course Adventure Program.” It also specifically mentions negligence. The hold
harmless agreement is not overbroad. It only applies to all causes of action “resulting from,
arising out of or in any way connected with his/her participation in or use of the Northwest
Nazarene University Challenge Course Adventure Program.” 2 Due to the dangers inherent in
climbing the climbing wall, the University can certainly require such a release from anyone
choosing to engage in that activity.
The agreement is likewise not inapplicable because of its failure to mention the specific
conduct that is alleged to have constituted negligence in this case. In Anderson & Nafziger v. G.
T. Newcomb, Inc., 100 Idaho 175, 178, 595 P.2d 709, 712 (1979), this Court stated, “Clauses
which exclude liability must speak clearly and directly to the particular conduct of the defendant
which caused the harm at issue.” That language can be misinterpreted, because neither that case
nor the cases it cited nor our subsequent cases have held that an exculpatory clause must list the
specific, allegedly negligent conduct at issue.
The Anderson & Nafziger Court cited three cases as support for the statement. The first
one was Valley National Bank v. Tang, 499 P.2d 991 (Ariz. Ct. App. 1972). In that case, the
court stated “that clauses which purport to exclude liability for negligence must speak clearly and
directly to the conduct at issue,” id. at 994, which it explained as meaning that an exculpatory
clause would not cover negligence unless the wording was broad enough to include future
negligent conduct within its scope. It stated, “The principal reason for such a construction is to
assure that there has been actual agreement between the parties that the defendant shall not be
liable for the consequences of future conduct which would otherwise be negligent.” Id. The
second case was Missouri Pac. R. Co. v. City of Topeka, 518 P.2d 372 (Kan. 1974). The court
held that a contract requiring a railroad to “save the said City of Topeka harmless from all costs,
damages and expenses for the payment of which the said city may become liable to any person
or persons or corporation by reason of the granting of said right of way to said railway
company,” id. at 375, was not broad enough to require the city to pay the railroad the cost of
relocating its tracks due to an urban renewal project. The court stated, “As we view the ‘hold
harmless’ clause, to which the railroad is deemed to have agreed, there is no suggestion it was
intended to provide protection against liability for expenses, loss or damage created or made

2
There is no contention that the conduct of the University employee was reckless or that the employee intentionally
injured Morrison.

5
necessary by actions of the city-franchisor.” Id. at 376. The third case was Walker Bank & Trust
Co. v. First Sec. Corp., 341 P.2d 944 (Utah 1959), in which the beneficiary of a life insurance
policy sued a bank for damages because the policy had lapsed due to the bank’s failure to charge
the insured’s account with drafts for the monthly premiums. The insured had signed an
authorization to pay the drafts from her account, but the bank misplaced it. The authorization
included a provision stating, “I understand and agree that your compliance herewith shall
constitute a gratuity and courtesy accorded me as your customer, and that you assume or incur no
liability whatsoever in the premises, and I further agree to hold you harmless of and from any
and all claims arising hereunder.” Id. at 947. The court held that the hold harmless agreement
only barred claims resulting from the bank’s “compliance herewith,” not its failure to comply
with the agreement. The court stated:
It will be noted that the language quoted above purports only to protect the
bank from liability arising from its compliance with the authorization, indicating
that if it did so it would “incur no liability whatsoever.” . . . But there is no
provision that it would be protected in the event of entire failure to fulfill the
arrangement.

Id. (emphasis theirs). None of the cases held that an exculpatory clause was ineffective because
the specific conduct that gave rise to the cause of action was not listed.
In Anderson & Nafziger, the buyer contracted to purchase three pivots that the seller
agreed to deliver and install in mid-May, and the buyer brought an action for damages when the
seller failed to do so. The purchase contract included a provision limiting the seller’s liability
which stated as following:
It is hereby understood and agreed that all work ordered hereunder is
precarious and uncertain in its nature, and all pulling of pumps, reinstalling
pumps, repair work, alterations, well work, sand pumping, corrections, or other
work herein specified, etc., shall be strictly at the Purchaser’s risk. The Seller will
not be liable for damage of any kind, particularly including loss or damage for
diminuation or failure of crop, shortage of water, inability or failure to supply
same, or for diminuation or cessation of water flow; nor shall the Seller be liable
for any damages or delays of any kind on account of sticking of pump in the well
in any position, either when being pulled out or being reinstated nor shall the
Seller be liable for any damages on account of delay in making repairs or
installing by virtue of some defect in the well, or by virtue of the well not being in
condition to receive the machinery, or by virtue of unforeseen or changing
conditions in the well or in or about the premises on which the well is located.

6
Anderson v. Nafziger, 100 Idaho at 178, 595, P.2d at 712. This Court held that the clause did not
preclude liability for crop loss caused by the failure to deliver the pivots because “[a] reading of
the total clause indicates that the clause is aimed at limiting the seller’s liability for crop loss
which is caused by installation or repair work done by seller.” Id. The clause listed specific
types of conduct and causes of damage to which it applied. It did not have a general provision
excluding liability for any delay in delivering or installing the equipment.
A review of this Court’s other cases shows that the hold harmless agreement need not
specify the exact conduct that was allegedly negligent or caused harm. In H. J. Wood Co. v.
Jevons, 88 Idaho 377, 400 P.2d 287 (1965), a landowner had entered into a contract for the
purchase and installation of an irrigation pump in her well. The sales contract included a hold
harmless agreement stating as follows:
Seller shall not be liable for damage or for consequential damage,
particularly including loss or damage for diminution or failure of crops, shortage
of water, or inability or failure to supply same, whether due to improper
installation or performance of the machinery or otherwise . . . it being understood
and agreed by Buyer that this work is uncertain and precarious in its nature.

Id. at 378, 400 P.2d at 289. The landowner sought damages, alleging that she suffered crop
losses because “the pump never functioned properly,” because the seller “removed the pump to
make repairs and failed to provide appellant with a substitute pump,” and because “in making
repairs to said pump [the seller] carelessly and negligently lost the tail pipe of said pump in the
well, causing an inadequate flow or supply of water during the irrigation season.” Id. at 380, 400
P.2d at 288. The trial court sustained the seller’s objection to any evidence of crop loss, and then
dismissed the landowner’s claim. On appeal, this Court held that it was not error to exclude
evidence of crop loss because “[t]he foregoing quoted portion of the contract is unambiguous and
clearly exempts respondent from liability for crop damage.” Id. at 381, 400 P.2d at 289. There
was nothing in the exculpatory clause specifying that the seller would not be liable for failing to
provide the landowner with a substitute pump while hers was being repaired or for negligently
losing the tail pipe in the well, both of which were conduct that she alleged caused her damage.
In fact, the clause did not even include the word “negligence.”
In Rawlings v Layne & Bowler Pump Co., 93 Idaho 496, 465 P.2d 107 (1970), the
landowner entered into a contract for the purchase and installation of irrigation pumping
machinery. He later brought an action seeking damages on the ground that he suffered crop loss

7
because of the allegedly negligent installation of the pumping equipment. Paragraph 10 of the
contract between the parties included an exculpatory clause stating:
Seller or Holder shall not be liable for consequential damage particularly
including loss or damage for diminution or failure of crops, shortage of water, or
inability or failure to supply same, due to installation or performance of the
property sold hereunder, or repair work, pump or well service, nor shall Seller be
liable for collapsing, telescoping, separating or otherwise injuring the well or
pump, for any cause whatsoever, including negligence, since the Buyer and Seller
agree that the work is hazardous and precarious in its nature . . . .

Id. at 497, 465 P.2d at 108. The trial court dismissed the landowner’s claim based upon the
above contract provision, and the landowner appealed. In upholding the dismissal, we stated, “It
is our opinion that the language contained in paragraph 10 of the contract is clear and
unambiguous and its effect is to preclude the seller’s liability for consequential damages such as
are sought by the appellant.” Id. at 499, 465 P.2d at 110. We did not require that the
exculpatory clause mention the specific conduct that was allegedly negligent. In fact, the
specific conduct that allegedly constituted negligent installation was not even identified in the
opinion.
In Steiner Corp. v. American District Telegraph, 106 Idaho 787, 683 P.2d 435 (1984), the
plaintiff contracted with the defendant to install and maintain a fire alarm system in the
plaintiff’s building. The system failed to detect a fire because the defendant had not checked the
electrolyte levels in the system’s batteries for eight months even though they were to be
inspected monthly. The parties’ contract included a provision stating that the defendant “shall be
exempt from liability for loss or damage due directly or indirectly to occurrences, or
consequences therefrom, which the service is designed to detect or avert,” and that the
exculpatory clause applied if the loss or damage “results directly or indirectly to person or
property from performance or nonperformance of obligations imposed by this contract or from
negligence, active or otherwise, of the [defendant], its agents or employees.” Id. at 789, 683
P.2d at 437. The plaintiff sued for strict liability, breach of warranty, and negligence. This
Court first held that the complaint did not allege a cause of action under those theories, but then
stated that even if the plaintiff could allege a cause of action it was barred by the exculpatory
clause. Id. at 791, 683 P.2d at 439. We stated, “This unambiguous clause was clearly intended
to apply to exclude liability under any of the bases urged by Steiner.” Id. The clause did not
specifically mention the failure to inspect or maintain the batteries.

8
 In Lee v. Sun Valley Co., 107 Idaho 976, 695 P.2d 361 (1984), the plaintiff, prior to going
on a trail ride, signed a rental agreement that included an exculpatory clause stating:
Upon my acceptance of horse and equipment, I acknowledge that I assume full
responsibility for my safety. I further understand that I ride at my own risk, and I
agree to hold the above entity, its officers, employees, etc., harmless from every
and all claim which may arise from injury, which might occur from use of said
horse and/or equipment, in favor of myself, my heirs, representatives or
dependents. I understand that the stable does not represent or warrant the quality
or character of the horse furnished.

Id. at 977, 695 P.2d at 362. Prior to the plaintiff mounting his horse, the defendant’s employee
adjusted the cinch on the saddle. During the ride, the saddle loosened, and the plaintiff was
injured when it rotated and the horse reared as he was attempting to dismount. We upheld the
dismissal of the plaintiff’s claim on the ground that it was barred by the exculpatory clause,
stating, “The agreement clearly and simply states that Sun Valley should be held ‘harmless for
every and all claim which may arise from injury, which might occur from use of said horse
and/or equipment,’ which is both unambiguous and applicable to the facts alleged by plaintiff.”
Id. at 978, 695 P.2d at 363. The exculpatory clause did not even mention negligence, nor did it
specifically list the failure to properly adjust the cinch as being within its scope. Justice Bistline
dissented for that very reason. Id. at 981, 695 P.2d at 366.
Finally, in Empire Lumber Co v Thermal-Dynamic Towers, Inc., 132 Idaho 295, 971 P.2d
1119 (1998), a warehouse lease contained a provision stating, “Except for reasonable wear and
tear and damage by fire or unavoidable casualty, Lessee will at all times preserve said premises
in as good repair as they now are or may hereafter be put to . . . .” Id. at 297, 971, P.2d at 1121.
We held that the clause did not exempt the lessee from liability for fire damage caused by the
lessee’s negligence, stating, “The lease language does not clearly indicate, as required by this
Court’s decision in Anderson & Nafziger, that the parties intended to release TDT from liability
for its negligent acts.” Id. at 300, 971 P.2d at 1124. The clause made no mention of negligence,
nor could its language be construed to apply to negligence. Hold harmless agreements are
strictly construed against the person relying upon them. Anderson & Nafziger, 100 Idaho at 178,
595 P.2d at 712.
The decisions of this Court have not held that a hold harmless agreement must describe
the specific conduct or omission that is alleged to be negligent in order for it to bar recovery.
That is consistent with the general law. “The parties to a release need not have contemplated the

9
precise occurrence that caused the plaintiff’s injuries but rather may adopt language to cover a
broad range of accidents by specifying injuries involving negligence on the part of the
defendant.” 57A Am. Jur. 2d Negligence § 53 (2004). In this case, the agreement stated that
Morrison held the University harmless “from any loss, liability, damage or cost she/he might
incur due to her/his participation in or use of the Northwest Nazarene University Challenge
Course Adventure Program whether caused by the negligence of the Releasees or otherwise.”
That language clearly stated that the clause applied to negligence and to any loss or damage he
might incur from his participation in the program. The district court did not err in dismissing his
negligence claim because it was barred by the hold harmless agreement.

IV.
Is the Defendant Entitled to an Award of Attorney Fees?
In its issues on appeal, the University states that it “requests attorney fees on appeal
pursuant to Idaho Code § 12-120(3), Idaho Code § 12-121, and/or Idaho Rule of Civil Procedure
54(e)(1).” However, it did not again mention attorney fees until it states in the conclusion
section of its brief, “Respondent further requests an award of attorney fees on appeal pursuant to
Idaho Code § 12-120 (3), Idaho Code § 12-121, and/or I.R.C.P Rule 54(e)(1).” As we held in
Weaver v. Searle Brothers, 129 Idaho 497, 503, 927 P.2d 887, 893 (1996), where a party
requests attorney fees on appeal but does not address the issue in the argument section of the
party’s brief, we will not address the issue because the party has failed to comply with Idaho
Appellate Rule 35.

V.
Conclusion.
We affirm the judgment of the district court. We award the respondent costs, but not
attorney fees, on appeal.

Chief Justice BURDICK, Justices W. JONES, and HORTON CONCUR.

10
 J. JONES, J., concurring in part and dissenting in part.
I concur in Part II of the Court’s opinion but dissent with respect to Part III. In my view,
the Release/Hold Harmless/Indemnity/Assumption of Risk Agreement (Agreement) does not
contain language effective to release Northwest Nazarene University (NNU) from liability for its
own negligent actions; the release language in the Agreement is overly broad; and it would be
contrary to public policy to provide immunity under the particular facts of this case.
Although this Court disfavors contracts purporting to absolve parties from certain duties
and liabilities, contracting parties are free to enter into such agreements if they comply with strict
criteria. As this Court summarized in Jesse v. Lindsley, 149 Idaho 70, 75, 233 P.3d 1, 6 (2008):
Freedom of contract is a fundamental concept underlying the law of contracts.
Rawlings v. Layne & Bowler Pump Co., 93 Idaho 496, 499, 465 P.2d 107, 110
(1970). A contracting party may absolve himself from certain duties and liabilities
under the contract, subject to certain limitations. Anderson & Nafziger v. G.T.
Newcomb, Inc., 100 Idaho 175, 178, 595 P.2d 709, 712 (1979). However, courts
look with disfavor on such attempts to avoid liability and construe such provisions
strictly against the person relying on them, especially when that person is the
preparer of the document. Id. Clauses which exclude liability must speak clearly
and directly to the particular conduct of the defendant which caused the harm at
issue. Id.

Where a party seeks to obtain contractual absolution from the consequences of that
party’s own negligence, the release language must be particularly clear. As stated in 57A
American Jurisprudence, 2d Negligence § 52 (2004):
Because the law does not favor contract provisions that relieve a person from his
or her own negligence, and such provisions are subject to close judicial scrutiny, a
greater degree of clarity is required to make such provisions effective. The
exculpatory provision must be expressed in clear, explicit, and unequivocal
language showing that this was the intent of the parties. The wording of such an
agreement must be so clear and understandable that an ordinarily prudent and
knowledgeable party to it will know what he or she is contracting away; it must
be unmistakable.

American Jurisprudence continues the discussion in section 53:
To be effective, the intentions of the parties with regard to an exculpatory
provision in a contract should be delineated with the greatest of particularity, and
the clause must effectively notify the releasor that he or she is releasing the other
person from claims arising from that person’s own negligence.

An exculpatory clause will be given effect if the agreement clearly and
unambiguously expresses the parties’ intention to exonerate by using the word

11
 “negligence” and specifically including injuries definitely described as to time,
place, and the like. Thus, the better practice is to expressly state the word
“negligence” somewhere in the exculpatory provision. However, a specific
reference to the “negligence” of the maker of the clause or agreement is not
required if the clause clearly and specifically indicates an intent to release the
defendant from liability for a personal injury caused by the defendant’s
negligence, if protection against negligence is the only reasonable construction, or
if the hazard experienced was clearly within the contemplation of the provision.
However, words conveying a similar import must appear; the provision must
specifically and explicitly refer to the negligence of the party seeking a release
from liability. A preinjury release will not cover negligence if it neither
specifically enumerates negligence, nor contains any other language that could
relate to negligence.

A general release will not bar claims outside the parties’ contemplation at the time
it was executed. For example, a claim for negligence will not be barred by using
broad and sweeping language, as by an agreement to release from “any and all
responsibility or liability of any nature whatsoever for any loss of property or
personal injury occurring on this trip.” Thus, an exculpatory clause must clearly
set out the negligence for which liability is to be avoided.

The parties to a release need not have contemplated the precise occurrence that
caused the plaintiff’s injuries but rather may adopt language to cover a broad
range of accidents by specifying injuries involving negligence on the part of the
defendant.

Id. § 53.
The Agreement addresses four subjects―release, hold harmless, indemnity, and
assumption of risk. The first paragraph of the Agreement, entitled “Release,” is a general release
of liability, 3 whereby participants in NNU’s Challenge Course Adventure Program (Program)
release and waive claims against NNU and its agents and employees for property damage or
bodily injury arising out of the Program. The word “negligence” does not appear anywhere in the
Release. The second paragraph of the Agreement is a hold harmless/indemnity provision, 4
whereby the participant “agrees to defend, indemnify and hold harmless” NNU and its agents
and employees from liability incurred due to participation in the Program “whether caused by the
negligence of the Releasees or otherwise.” Thus, the participant is obligated to defend and hold

3
According to Black’s Law Dictionary, a “release” is “[t]he relinquishment or concession of a right, title, or claim.”
Black’s Law Dictionary 1403 (9th ed. 2009).
4
According to Black’s, a “hold-harmless clause” is synonymous with an “indemnity clause,” which is “[a]
contractual provision in which one party agrees to answer for any specified or unspecified liability or harm that the
other party might incur.” Id. at 800, 837−38.

12
harmless the releasees against claims arising out of his or her participation in the Program. This
paragraph specifically includes indemnity for claims alleging negligence on the part of NNU and
its agents and employees. The last paragraph deals with assumption of risk, 5 stating that the
participant is aware that the course may be hazardous and that participants assume the risk of
property damage and bodily injury. However, as with the Release, this paragraph makes no
mention of negligence on the part of NNU and its agents and employees.
It is significant that only the hold harmless/indemnity paragraph of the Agreement
includes a provision relating to the negligence of NNU. The word “negligence” appears nowhere
else in the Agreement, particularly not in the Release nor in the assumption of risk paragraph. It
is important to keep in mind that a hold harmless/indemnity clause does not operate as a bar to a
claim in the same way as a “release” or “assumption of risk” clause might. So, where the party
seeking immunity faces the double whammy of our construction principles―construing release
provisions strictly against the person relying on them and requiring such provisions to speak
clearly and directly to the particular instrumentality that caused the harm―I simply cannot find
that the release language here is sufficient to waive Morrison’s claim. NNU could have included
a provision in the Release absolving it and its agents and employees from liability, but it did not.
It could have done likewise in the assumption of risk paragraph, but it did not. Where such
language is specifically included in one paragraph dealing with specific subject matter and not in
the other paragraphs, both of which deal with other specific subject matter, I think we ought to
give weight to that fact, particularly when required to construe such agreements against the
avoidance of liability.
Therefore, in my view, the release paragraph of the Agreement is insufficient to
immunize against claims asserting injury for negligent acts by NNU and its agents and
employees. In my estimation, NNU had a duty to operate the program in a non-negligent manner
and Morrison has asserted sufficient facts to survive summary judgment as to whether NNU
breached such duty. Morrison claims that he was not properly instructed on how to scale down
the climbing wall and that the person holding the rope, which is apparently designed to keep a

5
According to Black’s, “assumption of the risk” is “[t]he principle that one who takes on the risk of loss, injury, or
damage cannot maintain an action against a party that causes the loss, injury, or damage.” Id. at 143. Although
implied assumption of the risk has been abolished as a defense in Idaho, this Court still recognizes that express
assumption of risk may preclude a negligence claim. Salinas v. Vierstra, 107 Idaho 984, 989−90, 695 P.2d 369,
374−75 (1985).

13
participant from falling, was not properly instructed and supervised in performing that task.
According to Morrison:
I had very little knowledge of climbing before [the accident]. I trusted and relied
that the people running the course would properly instruct me and the people who
were holding the rope that allowed me to scale down the wall. I do not believe
that they gave me nor Donna Robbins, who was holding my rope, adequate
instruction before this event nor do I believe that they adequately supervised
Donna in properly handling the rope while I descended the wall.

The person holding the rope, Donna Robbins, agreed that she had not been properly
instructed nor supervised. According to her affidavit, “I did feel that I had not been given
adequate training to act as the belayer and I felt that I was neglected by the employees at the
Rope Course when I was needing help.” In her statement made immediately after the accident,
which was incorporated into her affidavit, she expanded:
The female assistant on site asked me to balet [sic] if I wasn’t going to climb the
wall. I wasn’t comfortable working the equipment but I knew I should be a part of
the team and help [belay]. I remember feeling like I was thrown in there and did
not receive any further instruction other than where to hold my hands. After she
strapped me in I was good to go. Soon she realized I was having trouble knowing
what to do and informed me that I needed to pull the rope tight and slide the extra
rope through my other hand to make it tight. She then placed another girl to my
right and instructed her to coil the rope. I was the only one baleting [sic] and had
one girl to my right holding the extra rope. As soon as they pulled the [ladder]
away and Paul started climbing, I began to have trouble with the rope. The
assistant assured me I was strapped down to the pole behind me and that I needed
to walk forward away from the pole until I felt it was tight enough to not leave
any slack. As soon as Paul reached the middle of the wall, his legs began to get
tired and he would rest a little. But every time he would stop to rest, the rope
pulled me into the air and the others around were laughing and joking around
about the [sight] of me and my feet being off the ground and my body being
pulled into the air. At first, it was comical but I felt like I couldn’t control him. I
knew he had to keep climbing or else this strain on me would begin to hurt. So I
just cheered him on. I looked around and everyone was just smiling so I figured I
wasn’t going anywhere and there was nothing to worry about. Paul looked down
and looked a little worried. He asked me if I was ok. I said yes. When Paul finally
got to the top, he rang the bell and was ready to let go. When he did, if felt like an
extreme pull on me and the assistant came quickly to briefly explain what to do.
She told me to hold onto the [brake] (that also releases the rope). I think she
thought she was explaining it to me−but she wasn’t. I told her I didn’t know how
to use it. She said “its really easy,” just make sure you pull down the level.” She
was walking away from me as she was saying this and she seemed very busy with
other people. I didn’t think it would be too difficult. As I pulled the lever, Paul
began to come down fast and I honestly don’t remember what I was thinking. I

14
 tried to grab the rope but it just stung my fingers and I knew I couldn’t stop it that
way. I kept trying to figure it out quickly. The girl to my right was helpless as
well. The rope was just flying out her hands. I looked up and Paul’s feet, then
butt, hit the rocks very fast and head hit very hard on the wooden frame around
the rocks.

My feeling throughout the rock-climbing activity was that I was alone and
assigned to do it because I had to. I wasn’t comfortable at all but the assistant felt
I was well taken care of. Even though I didn’t answer her twice when she asked
for volunteers, so she called me out and handed me the [belay]. But I did want to
be a part of the team and help but had never done it before and was pretty
intimidated.

Even if we were permitted to import the specific reference to negligent conduct from the
hold harmless/indemnity paragraph into the Release, that paragraph suffers from another
infirmity. It is overly broad. It purports to release NNU and its agents and employees from any
claims for property damage or bodily injury “however caused, resulting from, or arising out of or
in any way connected with his/her participation in or use of the Northwest Nazarene University
Challenge Course Adventure Program.” The sweeping nature of the provision runs afoul of the
specificity requirements noted in sections 52 and 53 of American Jurisprudence. This Court has
found a similar all-encompassing provision in a lease agreement to be overly broad. In Jesse v.
Lindsley, we dealt with an exculpatory clause that attempted “to relieve the landlord of liability
for any type of injury, wherever it may occur.” 149 Idaho at 76, 233 P.3d at 7. We held, “The
clause is too broad and does not speak clearly and directly to the particular conduct of the
defendant intended to be immunized,” citing Anderson & Nafziger, 100 Idaho 175, 178, 595
P.2d, 709, 712 (1970). We stated:
While we have not considered the question of the enforceability of an overbroad
exculpatory clause, we have considered the issue of enforceability of an
overbroad contract provision in another area where a contractual provision is
disfavored and strictly construed―covenants not to compete in contracts of
employment. See Freiburger v. J-U-B Engineers, Inc., 141 Idaho 415, 420, 111
P.3d 100, 105 (2005). A covenant not to compete is reasonable and enforceable
only if the covenant “(1) is not greater than necessary to protect the employer in
some legitimate business interest; (2) is not unduly harsh or oppressive to the
employee; and (3) is not injurious to the public.” Id. Applying the same principle
here, it appears that the language absolving Lindsley of any liability for any
occurrence anywhere on his property is simply too broad.

Id. at 76−77, 233 P.3d at 7−8.

15
 In its opinion, the Court nicely summarizes some of our pre-Jesse cases regarding the
degree of specificity required in a lease provision, and in my view none of those cases preclude
the result I suggest here. In Lee v. Sun Valley Co., 107 Idaho 976, 695 P.2d 361 (1984), the
plaintiff was injured when the saddle on a rented horse slipped, causing the horse to buck. Id. at
977, 695 P.2d at 362. The Court found that the plaintiff’s action was precluded by an agreement
he signed acknowledging that he assumed the risk of riding and holding the defendant “harmless
from every and all claim which may arise from injury, which might occur from use of said horse
and/or equipment.” Id. Although the Court articulated little reasoning for its holding, a fall from a
horse due to a loose saddle is a danger inherent in horseback riding itself. Thus, the agreement’s
language was sufficient to put the plaintiff on notice of that risk. Of interest, however, is that the
release specifically identified the “equipment” as a potential source of injury, which is not the case
here. 6 In H. J. Wood Co. v. Jevons, the Court evaluated a sales contract for an irrigation pump
stating the seller “shall not be liable for damage or for consequential damage, particularly including
loss or damage for diminution or failure of crops … whether due to improper installation or
performance of the machinery or otherwise.” 88 Idaho 377, 378, 400 P.2d 287, 289 (1965). The
plaintiff’s claims for crop loss in that case all stemmed from the allegation that “the pump never
functioned properly” and the consequences of that malfunction, which is clearly and directly
contemplated by the “performance of the machinery” language in the agreement. See id. Thus, the
Court correctly applied the rule.
Another irrigation equipment contract case, Rawlings v. Layne & Bowler Pump Co., was
similar. 93 Idaho 496, 465 P.2d 107 (1970). There, the claim for crop loss was based on negligent

6
In this regard, a case cited in section 53 of American Jurisprudence is relevant. In Beardslee v. Blomberg, 70
A.D.2d 732, 733 (N.Y. App. Div. 1979), a spectator at a stock car race volunteered to take part in a “Powder Puff
Derby,” a stock car race for women. When the spectator’s car struck a retaining wall of the race track, she alleged
the defendant raceway was negligent in “providing her with an unsafe vehicle, a defective helmet, and in failing to
supply her with a fire suit.” Id. The defendant relied on a release she had signed to bar her claim (the language of
which is not entirely quoted in the opinion), but the New York Supreme Court, Appellate Division, stated:

The release absolves the defendants from liability for any injury plaintiff might sustain while in
the “restricted area”, which includes the race track proper. It does not, however, specifically refer
to equipment furnished by the defendants. Releases from liability for negligence are closely
scrutinized and strictly construed, and a release general in its terms will not bar claims outside the
parties' contemplation at the time it was executed …. Furthermore, since the release herein is not
entirely free of ambiguity, an issue of fact exists as to whether the risk of faulty equipment or the
failure to furnish essential equipment was within the contemplation of the parties at the time it was
executed ….

Id.

16
installation of pumping equipment, and the Court barred the claim based on an agreement
exculpating the seller from liability for consequential damage “due to installation … of the
property sold hereunder.” Id. at 497, 465 P.2d at 108. 7 Although the particular negligent conduct
was not addressed, further specificity was not necessary to put the buyer on reasonable notice of
the claim he was waiving. Id. Buying any item under a contract specifically limiting liability for
defects in installation clearly brings to mind the discrete array of possible installation-related
conduct that entails. Such a contract does far more to notify the signer than simply including
blanket language barring liability for any type of negligent conduct imaginable.
Similarly, in Steiner Corp. v. American District Telegraph, the defendant contracted with
the plaintiff to perform two discrete services—to install and maintain a fire detection system. 106
Idaho 787, 683 P.2d 435 (1984). When the defendant failed to check the batteries of the system for
eight months, the system failed to detect a fire in the plaintiff’s building. Again, the Court found
that such negligence fell under an exculpatory clause holding the defendant harmless for “loss or
damage due … to occurrences … which the service is designed to detect or avert” resulting from
“performance or nonperformance of obligations imposed by this contract or from negligence” of
the defendant. Id. at 789, 683 P.2d at 437. This agreement specifically spoke to the alleged
conduct by expressly referring to the discrete duties under the contract—to install and maintain. In
signing the agreement, the plaintiff undoubtedly understood he was giving up claims for fire
damage arising from failure to maintain the system, which reasonably included checking the
batteries.
Conversely, in Anderson & Nafziger, the Court refused to find that a sales agreement for
irrigation pivots contemplated liability for crop loss caused by delay in delivering the pivots, based
on a strict reading of the agreement’s language. 100 Idaho at 178, 595 P.2d at 712. Although the
agreement contained blanket language stating that “[t]he Seller will not be liable for damage of any
kind, particularly including loss or damage for diminuation [sic] or failure of crop,” the Court held
that the agreement did not apply. Id. The Court stated, “A reading of the total clause indicates that
the clause is aimed at limiting the seller’s liability for crop loss which is caused by installation or
repair work done by seller.” Id. With a loose reading, the Court might have found that the blanket
language exempting liability “for damage of any kind” extended not only to that caused by

7
The contract later specifically identified negligence of the seller as a possible cause. Id.

17
installation and repair, but also by delay in delivery. However, the Court declined such a broad
reading, focusing strictly on the language in the contract. 8
The upshot of these pre-Jesse cases is that where the dangers or risks inherent in a
particular undertaking are, or should be, apparent to a reasonable person and where the release
agreement employs clear and direct language to negate liability for such risks or dangers, the
release will be effective to shield the releasee from liability. On the other hand, where a reasonable
releasor cannot be expected to comprehend the risk or danger that results in injury and where the
release does not contain language that speaks directly to limitation of liability for injury caused by
such risk or danger, the release will not be enforced.
In the situation at hand, it cannot be said that the danger of falling from the rock wall was
not readily apparent to any reasonable person. Morrison would surely have known that he could
lose his grip or footing and fall. However, the activity involved a danger that was not so readily
apparent. This activity involved equipment and a procedure that may have appeared on the surface
to alleviate or eliminate the risk. The belaying rope, like a trapeze artist’s safety net, was there,
apparently to protect participants from the danger of a fall. This certainly would give a participant a
certain measure of comfort and well being―knowing that the element of danger might well be
alleviated or eliminated by the safety equipment. It is one thing to expose a participant to the
“dangers inherent” in a particular activity and ask him to waive a consequent claim for damages,
but it is quite another to give the participant the illusion of protective measures−thereby providing
a false sense of security―and then fail to properly implement those protective measures. It is akin
to a bait and switch. If protective measures are carried out in a competent manner, then an accident
occurring in the course of the proceedings cannot be held against the sponsor. However, if those
protective measures are inherently inadequate, by reliance on untutored or incapable personnel in
their handling, the sponsors should not be shielded from responsibility by a waiver signed by an
unwitting participant.
It makes sense to encourage sponsors of risky activities to adopt safety measures designed

8
Another case, Empire Lumber Co. v. Thermal-Dynamic Towers, Inc., also shows the Court taking a closer look at
an exculpatory clause, although the result there was more obvious. 132 Idaho 295, 971 P.2d 1119 (1998). In
Empire Lumber, a lessee sought to apply a lease provision to excuse its liability for a fire allegedly caused by its
negligence. Id. The Court disagreed because the lease merely stated, “Except for reasonable wear and tear and
damage by fire or unavoidable casualty, Lessee will at all times preserve said premises in as good repair as they now
are or may hereafter be put to ….” Id. at 297, 971 P.2d at 1121. As the Court properly found, that clause clearly
only contemplated incidental or unavoidable damage—not negligence. Id.

18
to alleviate or eliminate the risk to participants. It is not particularly good policy, however, to allow
sponsors to escape liability when those safety measures are handled in an incompetent or negligent
manner, unless participants are clearly put on notice that safety measures or equipment may not
provide the margin of safety that one might reasonably anticipate. Nothing in the Release here
indicates the employment of “equipment,” as the language in Lee did, nor of the possibility that
any safety equipment might be operated in a faulty manner. Sponsors should be encouraged to
adopt safety measures, but they should be held accountable where those measures are performed in
a negligent fashion.
In the past, this Court has not been reluctant to embrace concepts of this nature, designed to
provide redress where it may not have been previously available. For instance, the Court has
adopted the doctrine that, “[e]ven when an affirmative duty generally is not present, a legal duty
may arise if ‘one voluntarily undertakes to perform an act, having no prior duty to do so.’” Baccus
v. Ameripride Services, Inc., 145 Idaho 346, 350, 179 P.3d 309, 313 (2008). “In such case, the duty
is to perform the voluntarily-undertaken act in a non-negligent manner.” Id. As with a voluntarily
assumed duty, it makes good sense and policy to require that an activity sponsor who purports to
make a risky activity safe, by the apparent incorporation of protective measures, be required to
ensure the protective measures are carried out in a non-negligent manner or provide specific
warning to participants that a risk of negligence in that regard inheres in the activity. 9
For all or any one of the foregoing reasons, I would vacate the judgment of the district
court on the ground that the Agreement was ineffective to shield NNU from liability for
Morrison’s claim. I would therefore remand for further proceedings.

9
As we have noted on a number of occasions, “Public policy may be found and set forth in the statutes, judicial
decisions or the constitution.” Jesse v. Lindsley, 149 Idaho at 75, 233 P.3d at 6 (quoting Bakker v. Thunder Spring-
Wareham, LLC, 141 Idaho 185, 189, 108 P.3d 332, 336 (2005)).

19