Thomas A. Berret, Esq.
Meyer, Unkovic & Scott
Carl H. Cather, III, Esq.
Spilman, Thomas & Battle
Morgantown, West Virginia
Attorneys for the Appellant
Timothy J. Padden, Esq.
Bruce A. Kayuha, Esq.
Rose, Padden & Petty
Morgantown, West Virginia
Attorneys for the Appellees
JUSTICE NEELY delivered the Opinion of the Court.
CHIEF JUSTICE BROTHERTON did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
1. Generally, in the absence of an applicable safety
statute, a plaintiff who expressly and, under the circumstances,
clearly agrees to accept a risk of harm arising from the
defendant's negligent or reckless conduct may not recover for such
harm, unless the agreement is invalid as contrary to public policy.
When an express agreement is freely and fairly made, between
parties who are in an equal bargaining position, and there is no
public interest with which the agreement interferes, it generally
will be upheld.
2. A clause in an agreement exempting a party from tort
liability is unenforceable on grounds of public policy if, for
example, (1) the clause exempts a party charged with a duty of
public service from tort liability to a party to whom that duty is
owed, or (2) the injured party is similarly a member of a class
that is protected against the class to which the party inflicting
the harm belongs.
3. In the context of tort liability, when considering
whether an enterprise qualifies as a public service, the Court must
examine the nature of the enterprise itself.
4. When a state university provides recreational activities to its students, it fulfills its educational mission, and performs a public service. As an enterprise charged with a duty of public service, a state university owes a duty of care to its students when it encourages them to participate in its athletic endeavors.
The appellant, Jeffrey Kyriazis, filed a complaint in the
Circuit Court of Monongalia County against appellees seeking
damages for injuries he suffered while playing rugby in a match
held by the West Virginia University Rugby Club. The outcome of
this appeal turns on the validity of an anticipatory release signed
by the appellant and found to be an absolute bar to his claim by
the trial court in its order that granted summary judgment in favor
of the Board of Trustees ["Board"] and William Fitzpatrick, the
faculty advisor to the Rugby Club. Because we find the
anticipatory release in this case violates public policy and equal
protection under the West Virginia Constitution, we find the
circuit court improperly granted the summary judgment, and for the
reasons stated below, we reverse and remand.
In February 1990, during the second semester of his
sophomore year, the appellant became interested in playing rugby
after seeing notices posted for the sport at the university. Mr.
Kyriazis' interest resulted in his attending an organizational
meeting of the Rugby Club, and, eventually, his decision to join
In his deposition, Mr. Kyriazis testified the club held
practice three days per week for six to eight weeks before the
first match. Appellee Fitzpatrick, the coach and faculty advisor,
provided the instruction and coaching at the practices that were
conducted on the property of West Virginia University
["University"]. Scrimmages occurred during some of the practices,
as well as on one separate day. The appellant participated in most
of the practices and one separately held scrimmage.
During one of the practices, the team captain told the
players they were all required to sign a document entitled "West
Virginia Sports Club Federation, Rugby Club, Release, Waiver, and
Participation Agreement" ["Release"].See footnote 1 Although the parties to this appeal disagree as to whether Mr. Kyriazis understood the
terms of the Release, the appellant signed the formSee footnote 2.
Before joining the Rugby Club, the appellant had no
previous experience with the sport. On 7 April 1990, while playing
in his first match, Mr. Kyriazis left the game in the second half
after he became dizzy and lost his balance. Later medical studies
revealed appellant had suffered a basilar-artery thrombosis.
In April 1992, Mr. Kyriazis filed his complaint against
the appellees seeking damages in excess of $100,000 up to but not
in excess of defendant's liability insurance coverage for his
injury. As one of their defenses to the complaint, the Trustees
and Dr. Fitzpatrick asserted the signed Release barred appellant's
claim. Thereafter, the parties engaged in extensive discovery, all
related to the validity of the Release.
According to Mr. David Taylor, the Director of Student
Activities at the University, the University's Department of
Student Activities offers students the opportunity to participate
in athletics through intramural programs and club sports.See footnote 3 The
difference between intramural programs and sports clubs lies mainly
in the degree of control the University exercises over each.
Although the Board undertakes no role with the creation,
organization, regulation or supervision of club sports, including the Rugby Club, it does actively control intramural programs and
reviews them for safety.See footnote 4
If a student wants to participate in a sport not offered
in the intramural program, he or she may form or join a sports club
and the sports club may obtain recognition from the university.See footnote 5
This recognition entitles the sports club to money from the
university, as well as the use of university facilities. After a
sports club becomes an authorized student organization, it may also
join the Sports Club Federation ["Federation"] and receive
additional money.See footnote 6 In 1974, the Rugby Club successfully petitioned
for University recognition and maintained such status as of the
date of appellant's injury. It was also a member of the Sports
Club Federation at that time.
Mr. Taylor testified that the University did not require
a signed Release as a condition of participation if the student
were involved in intramural sports, in a sports club that was not
a member of the Federation, or if the student were involved in an
activity of any other student organization. Instead, the only
students required to sign the Release were those whose sports clubs belonged to the Federation.See footnote 7 Although the Office of General
Counsel approved the Release, the evidence in the record reveals
the Release policy was made without any involvement by the Director
of Student Activities, the University President, or the Board.
After the discovery of the above facts, the appellant
moved for partial summary judgment seeking a determination that:
(1) the anticipatory Release he signed was void as against the
public policy of the State of West Virginia; (2) the policy
requiring him to sign the Release was unconstitutional under the
Constitutions of the State of West Virginia and the United States;
and (3) the policy was invalid because it was not properly adopted
by the appellees. The appellees filed cross-motions for summary
judgment and the Board and Dr. Fitzpatrick based their motions on
the claims that the anticipatory Release constituted an absolute
bar to suit and that the University owed no duty to the appellant.
On 14 July 1993, the circuit court granted appellees' motions. The
court entered a supplemental order on 3 September 1993 confirming
In this appeal, the appellant asserts the following
errors: (1) the circuit court erred in denying his motion for
partial summary judgment and in granting the appellees' motions
because the anticipatory Release is contrary to the public policy of the State of West Virginia; (2) the circuit court erred in
denying Appellant's motion for partial summary judgment because the
Release is an unconstitutional deprivation of his right to equal
protection guaranteed by the West Virginia and the United States
Constitutions, and unconstitutionally deprives him of his right to
a certain remedy as guaranteed by the West Virginia Constitution;
and (3) the circuit court erred in denying Appellant's motion for
partial summary judgment because the Release was promulgated
contrary to the procedures required for the adoption of official
University policy and the persons who promulgated the policy lacked
authority to do so. In determining the validity of the Release, we
will consider each of these issues in turn.
In Murphy v. North American River Runners, Inc., 186 W. Va. 310, at 314-315, 412 S.E.2d 504, 508-09 (1991), we outlined the West Virginia law on anticipatory releases as follows:
Generally, in the absence of an applicable safety statute, a plaintiff who expressly and, under the circumstances, clearly agrees to accept a risk of harm arising from the defendant's negligent or reckless conduct may not recover for such harm, unless the agreement is invalid as contrary to public policy. Restatement (Second) of Torts § 496B (1963, 1964)(express assumption of risk). When such an express agreement is freely and fairly made, between parties who are in an equal bargaining position, and there is no public interest with which the agreement interferes, it generally will be upheld. . . .
A clause in an agreement exempting a party
from tort liability is, however, unenforceable
on grounds of public policy if, for example,
(1) the clause exempts a party charged with a
duty of public service from tort liability to
a party to whom that duty is owed, or (2) the
injured party is similarly a member of a class
which is protected against the class to which
the party inflicting the harm belongs.
Restatement (Second) of Contracts § 195(2)(b)-
(Emphasis in original)(Citations omitted).
River Runners considered whether a commercial whitewater
rafting service could require its customers to sign an anticipatory
release purporting to exempt it from tort liability for the failure
of its guide to conform to the expected rafting standard of care. Before embarking on her river expedition, the plaintiff in River Runners had signed a pre-injury release in favor of the defendant. The plaintiff suffered serious injuries to her knees and ankles on her trip and later instituted a personal injury action against the whitewater service. The trial court found the executed release was a complete bar to plaintiff's claim and granted summary judgment in favor of the rafting company.
On appeal, we found the West Virginia Whitewater
Responsibility Act imposed certain statutory duties upon commercial
whitewater outfitters and guides that the legislature had enacted
for the protection of participants in whitewater rafting
expeditions. River Runners at 186 W. Va. 310, 317-318, 412 S.E.2d
511-512. Because the anticipatory release exempted the whitewater
defendant from these statutory safety standards, we held the pre-injury release invalid as a matter of public policy. 186 W. Va. at
318, 412 S.E.2d at 512.
In River Runners, amicus curiae contended the provision
of services for a whitewater rafting expedition did not constitute
a "public service." After stating the characteristics of a "public
service" in an extensive footnote, we voiced our agreement with
counsel on this point, but still stressed that "anticipatory
releases for inherently hazardous recreational or amusement
activities will usually be unenforceable when they involve a
violation of statutory safety standards or intentional or reckless
misconduct or gross negligence." 186 W. Va. at 315-16, 412 S.E.2d
at 509-510. In the appeal before us now, we return to consider the
issue of what constitutes a "public service," and whether the Board
of Trustees qualifies as one that provides such services in this
Tunkl v. Regents of University of California, 60 Cal.2d
92, 383 P.2d 441, 32 Cal.Rptr. 33 (1963) (en banc), the leading
case on the issue, lists six criteria to determine whether an
anticipatory release violates public policy under the "public
service" exception. Characteristics of a "public service" are
(1) it concerns a business of a type generally thought suitable for public regulation;
(2) the party seeking exculpation is engaged in performing a service of great importance to the public and which is often a matter of practical necessity for some members of the public;
(3) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards;
(4) because of the essential nature of the service, and the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks such service;
(5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees to obtain protection against negligence;
(6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of such furnisher or its servants.
Tunkl, 383 P.2d 441, 444-6, 32 Cal.Rptr. 33, 36-38.
The appellees argue the Board satisfies none of the above
criteria for "public service" when it permits extra-curricular
activities by sports clubs at West Virginia University. Appellees
basically contend the Rugby Club is a recreational activity, and
does not involve an essential service. They also assert the
appellant freely entered into the agreement. We disagree with both
As the appellant notes in his response brief, the issue
before this Court is not whether a recreational activity sponsored
or offered by a commercial enterprise constitutes public service;
the issue is whether a recreational activity sponsored by a state
university constitutes public service. Although how one phrases
the question often determines the answer one receives, the
appellant correctly frames the issue here because the Tunkl
criteria focus on the status of the entity providing the service.
When considering whether an enterprise qualifies as a public
service, we must examine the nature of the enterprise itself.
This Court has long held athletics are integral and
important elements of the education mission at West Virginia
University. In Glover v. Sims, 121 W.Va. 407, 411, 3 S.E.2d 612,
614 (1939), we stated:
No one can successfully assert that a proper athletic program is not appropriate to a great educational institution. The physical welfare of young men and women cannot with propriety be ignored. Education is a proper function of state government and includes appropriate physical development as well as mental and moral. Granting that mistakes may have been made throughout the land in over-emphasis of inter-collegiate athletic activities, such fact can in no degree overshadow the wholesome importance of properly regulated and directed inter-collegiate and intra-mural athletic programs.
See also, City of Morgantown v. West Virginia Board of Regents, 177
W.Va. 520, 354 S.E.2d 616 (1987)(athletic programs are a proper and integral part of the education provided by state universities);
Kondos v. West Virginia Board of Regents, 318 F.Supp. 394 (S.D. W.Va. 1970), aff'd 441 F.2d 1172 (4th Cir. 1971)(the carrying on of an athletic program is an important and necessary element in the educational process, especially in institutions of higher learning).
When a state university provides recreational activities to its students, it fulfills its educational mission, and performs a public service. As an enterprise charged with a duty of public service here, the University owes a duty of due care to its students when it encourages them to participate in any sport. The facts reveal the University even admitted athletic activities such as intramurals are an integral part of the education mission. Although the appellees cite abundant authority from other jurisdictions that hold athletic and recreational pursuits, themselves, are not matters of public service, they have not directed this Court to any similar authority involving state university sponsorship of these activities.
We now consider whether the Release in question is an
agreement freely and fairly made between parties who are in an
equal bargaining position. In Helmick v. Potomac Edison Company,
185 W.Va. 269, 276, 406 S.E.2d 700, 707 (1991), cert. denied, 112
S.Ct. 301, 116 L.Ed.2d 244 (1991), this Court stated that when a
gross disparity in bargaining power results solely from the
monopolistic position of one of the parties, we will find the adhesion contract unenforceable. The appellees insist the
appellant cannot place himself in the same category as a customer
dealing with a monopolistic power company. We think he can.
The Code of Student Rights and Responsibilities of the
University requires students to follow the instructions of
representatives of the Administration. (R. p. 181, §2.2). The
University also admitted the Release was prepared by a lawyer in
the Office of Counsel and nothing in the record reveals the
appellant had benefit of counsel when he signed the Release. If
appellant wished to play club rugby for the University, he had no
choice but to sign the Release. These facts demonstrate the
University's decisive advantage in bargaining strength over the
appellant at the time he signed the Release.
Because we believe the University qualifies as a "public
service," and that it possessed a decisive bargaining advantage
over the appellant when he executed the Release, we find the
anticipatory Release void as a matter of West Virginia public
The appellant also asks us to find the Release violates
equal protection principles under the West Virginia and United
States Constitutions, and violates the "certain remedies" provision of the W. Va. Constitution, Art. 3, Section 17. Appellant argues
that the Board of Trustees cannot constitutionally require students
participating in club sports to sign a release when it does not
require students participating in intramural sports to do the same.
As an initial matter, we note the action taken by the appellees in this case constitutes sufficient state action to give appellant standing to raise his constitutional claims.See footnote 8 See generally, G.M. McCrossin, Inc. v. W.Va. Board of Regents, 177 W.Va. 539, 355 S.E.2d 32 (1987); U.M.W.A. v. Parson's, 172 W.Va. 386, 305 S.E.2d 343 (1983); City of Morgantown v. Ducker, 153 W.Va. 121, 168 S.E.2d 298 (1969). Furthermore, we recognize the scope and application of equal protection guaranteed by the West Virginia Constitution is coextensive or broader than that guaranteed by the Fourteenth Amendment to the United States Constitution. See, Syl. pt. 3, Robertson v. Goldman, 179 W.Va. 453, 369 S.E.2d 888 (1988).
To begin, equal protection means the State cannot treat
similarly situated people differently unless circumstances justify
the disparate treatment. See, Courtney v. State Department of
Health, 182 W.Va. 465, 388 S.E.2d 491 (1989); Israel v. Secondary Schools Activities Commission, 182 W. Va. 454, 388 S.E.2d 480
(1989); Janasiewicz v. Board of Education, 171 W.Va. 423, 299
S.E.2d 34 (1982). As two commentators have noted, "[t]he equal
protection guarantee has nothing to do with the determination of
whether a specific individual is properly placed within a
classification. Equal protection tests whether the classification
is properly drawn." John C. Nowak and Ronald D. Rotunda,
Constitutional Law § 14.2, at 570 (4th ed. 1991).
In Cimino v. Board of Education, 158 W.Va. 267, 274-275,
210 S.E.2d 485, 490 (1974), this Court stated the tests used to
determine whether a classification will pass constitutional muster
under equal protection:
Whether a statute or governmental action violates the Equal Protection Clause is a determination made by the application of one of two constitutional tests. The more demanding test relates to statutes which impinge upon sensitive and fundamental rights and constitutional freedoms, such as religion and speech. In order to uphold such a statute, a reviewing court must find that a compelling state interest is served by the classification. . . .
In all other instances, the constitutionality of a statute, challenged under the Equal Protection Clause, is subject to the traditional standard requiring that the state law be shown to bear some rational relationship to legitimate state purposes. . . . Under this test, the court must consider whether the classification is a rational one based on social, economic, historic or geographic factors; whether the classification bears a reasonable relationship to a proper governmental purpose; and whether all persons within the classes established are treated equally.
We express no doubt about the classification created
here. All students enrolled at West Virginia University have an
equal right to participate in student activities. Our decision in
Pittsburgh Elevator Company v. West Virginia Board of Regents, 172
W.Va. 743, 310 S.E.2d 675 (1983), also allows any student injured
through the negligence of the University or its agents to maintain
a personal injury action. By conditioning students' participation
in clubs of the Federation upon their executions of the
anticipatory Release, without demanding the same from students
involved in intramurals, non-Federation clubs or other activities,
the University treats similarly situated persons differently. If
a student participates in intramurals, non-Federation club sports
or any other activity, he need not relinquish his legal rights in
order to participate. This is not true for the student who chooses
to participate in a Federation club sport, such as the Rugby Club.
In support of the Release policy, the appellees argue
various circumstances justify the disparate treatment. They claim
that: (1) because the University limits its sponsorship of club
sports it need not provide complete safeguards for the students in
the club; (2) the policy protects the Board and others from
potential liability; and (3) the Release apprises students of the
physical dangers of the sport, as well as of the University's
limited sponsorship. After considering all of these circumstances,
this Court holds none of them withstands even rational basis scrutiny.See footnote 9 Although the University clearly places numerous
responsibilitiesSee footnote 10 upon the students involved in club sports, it
still exercises such control over the club sports sufficient to
constitute state action, as we found earlier. So the question of
its involvement no longer becomes one of degree, but rather turns
on reasonableness when we consider equal protection itself. To say
the University may treat club sports differently from intramural
sports because it funds and supervises them differently is to
advance a tautology that does not consider equal protection. As
appellant notes, this is not a defense.
By requiring a signed release for Federation club sports,
the appellees also seek to relieve the Board and any instructors
from liability. However, our decision Pittsburgh Elevator Company
v. West Virginia Board of Regents, 172 W. Va. 743, 310 S.E.2d 675
(1983), states that because the Board and other state officers are
immune from suit when the state has procured liability insurance,
no recovery is being sought from state funds and the cause of action is, in essence, a suit against a state agency's insurance
carrier. 172 W. Va. at 756, 310 S.E.2d at 688-89. Although the
appellees stress the availability of insurance does not prevent the
possibility of litigation, this Court sees no legitimate purpose in
the requirement of the Release because Pittsburgh Elevator limits
recovery against the Trustees and any of the instructors to the
extent of the insurance retained. 172 W. Va. at 756, 310 S.E.2d at
Because the appellees claim rugby is dangerous, they
contend the Release is necessary as a warning to students who may
choose to participate in the Rugby Club. But as appellant notes in
his reply, injuries will occur in intramural sports, non-Federation
club sports and other athletic activities that do not require their
participants to sign anticipatory releases. The intramural program
includes sports such as football, basketball and riflery. Club
sports include crew and frisbee. And soccer is both an intramural
and a club sport at the University.
When the prospect for injury in intramurals is equal to
or greater than that in club sports, this Court sees no
justification for requiring appellant to sign the Release as a
condition of his participation. We hold the anticipatory Release
violates the equal protection guarantee under the West Virginia
Constitution. For similar reasons found for the equal protection
violation, this Court also holds the anticipatory Release impermissibly interferes with appellant's right to a "certain
remedy." See, Article III, Section 17 of the West Virginia
Constitution (". . . every person, for an injury done to him, in
his person, property, or reputation, shall have remedy by due
course of law. . . ."); Gibson v. West Virginia Department of
Highways, 185 W.Va. 214, 225, 406 S.E.2d 440, 451 (1991)(state
policy violates "certain remedies" provision if it "severely limits
existing procedural rights").
The appellant asks us to find the Release, as adopted,
invalid under the provisions of W. Va. Code 18B-1-1  et.
seq., which establishes the Board of Trustees and delegates to it
the responsibility of directing all of the affairs of the
University, including education. Because we find other law
dispositive on the question of the Release's validity, we need not
address whether the Board properly adopted the Release.
As a final matter, we note a genuine issue of material
fact exists here about whether appellant fully appreciated the
attendant risks of club rugbySee footnote 11; even though the appellees argue Mr.
Kyriazis understood the risks, we believe this is a factual matter to be properly determined by the jury on remand. See, Syl. pt. 5,
Desco Corporation v. Harry W. Trushel Construction Co., 186 W.Va.
430, 413 S.E.2d 85 (1991) ("The doctrine of assumed or incurred
risk is based upon the existence of a factual situation in which
the act of the defendant alone creates the danger and causes the
injury and the plaintiff voluntarily exposes himself to the danger
with full knowledge and appreciation of its existence").
Having found that the anticipatory Release in this case
violates public policy, equal protection, and "certain remedy"
principles under the West Virginia Constitution the judgment of the
Circuit Court of Monongalia County is reversed and this case is
remanded for further proceedings consistent with this opinion.
Reversed and remanded.
Footnote: 1 The complete text of the Release is in capitals and reads as follows:
I am aware that rugby is a hazardous activity,
and I am voluntarily participating in this
activity with knowledge of the danger involved
and hereby agree to accept any and all risks
of property damage, personal injury, or death.
In consideration of my participation, I hereby release West Virginia University, The University of West Virginia Board of Trustees, The Sports Club Federation, The Rugby Club, and any of its instructors or agents from any present and future claims, including negligence, for property damage, personal injury, or wrongful death, arising from my participation in rugby club activities.
Furthermore, I hereby voluntarily waive any and all claims, both present and future, arising from my participation in rugby club activities, including but not limited to negligence, property damage, personal injury,
and wrongful death.
I understand that rugby involves certain
risks, including but not limited to, travel to
and from the site of the activity, severe
physical contact, and the possible reckless
conduct of other participants. These risks
also include but not [sic] are not limited to
death, serious neck and spinal injuries
resulting in complete or partial paralysis,
brain damage, and serious injury to virtually
all bones, joints, muscles and internal
organs. I further understand that rugby
involves a particularly high risk of knee,
head, and neck injury.
I further understand that the rugby activities that I participate in may be conducted at sites that are remote from available medical assistance; and nonetheless agree to proceed with such activities in spite of the possible absence of medical assistance. I also understand that any equipment provided for my protection may be inadequate in preventing serious injury.
I have read this form and fully understand that by signing this form, I am giving up legal rights and/or remedies which may be available to me.
(Signature of Student) Date
(Signature of Parent or Date
Guardian if Student not
at lease [sic] 18 years of age)
Footnote: 2 Although the issue of assumption of the risk was not raised or briefed before the circuit court, the parties have briefed the issue here. Because this doctrine does not affect our inquiry into the validity of the Release itself, we reserve our discussion of assumption of the risk for last.
Footnote: 3 The University began its intramural program in 1927. Sports clubs arrived in the late 1960s.
Footnote: 4 The University does require sports clubs to submit certain documents, including a yearly officer and advisor update.
Footnote: 5 The process for securing University recognition of a sports club is not at issue here.
Footnote: 6 The University does not require a sports club to join the Sports Club Federation, and a sports club may receive official recognition and funding without joining the Federation.
Footnote: 7 The requirement of the Release for clubs in the Federation was also a recently implemented policy, having been adopted one or two years before appellant's injury.
Footnote: 8 The appellees do not dispute that state action exists here. They admitted that the Rugby Club was a recognized club which received financial support from the University, that Mr. Kyriazis was a student of the University and member of the Rugby Club at the time of his injury, that the University provided facilities for meetings and practices of the club, that appellee Fitzpatrick was the faculty advisor for the club and, finally, that the source of funding for all student activities comes from an activity fee charged to each student.
Footnote: 9 Because education is a fundamental right, and athletics are an integral part of education, the appellant suggests the classification is subject to strict scrutiny. See, Pauley v. Kelly, 162 W.Va. 672, 255 S.E.2d 859 (1979). Having found the classification unconstitutional under rational basis review, however, we need not address the application of higher tier scrutiny here.
Footnote: 10 The University supervises and schedules the intramural events. In contrast, students in club sports must supervise and schedule the club's activities. This entails planning competitions, travel, arranging practices and matches, advertising club activities and generating additional money through fundraisers.
Footnote: 11 In his deposition, Mr. Kyriazis testified he signed the Release before even participating in a scrimmage or observed match and claimed the risks of injury were not explained to him. Appellee Fitzpatrick testified he, personally, did not believe that injuries were inherent in rugby.