Avenarius v. State

IN THE COURT OF APPEALS OF IOWA

No. 22-1419
Filed February 7, 2024

KATHERINE AVENARIUS and PAUL AVENARIUS,
Plaintiffs-Appellees,

vs.

STATE OF IOWA,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Samantha Gronewald,

Judge.

On interlocutory appeal, the State challenges the denial of its partial motion

for summary judgment on claims relating to its negligence. AFFIRMED.

Brenna Bird, Attorney General, and Job Mukkada, Assistant Attorney

General, for appellant.

Todd N. Klapatauskas of Reynolds & Kenline, L.L.P., Dubuque, for

appellee.

Heard by Bower, C.J., and Tabor and Chicchelly, JJ. Langholz, J., takes

no part.
2

CHICCHELLY, Judge.

The Iowa Supreme Court granted the State interlocutory appeal of the order

denying its motion for partial summary judgment. The question before the court is

whether a document signed by a plaintiff expressed clear intent to waive personal

injury claims resulting from the defendant’s negligence. Because we agree with

the district court that the form does not show Avenarius’s intent to release the State

from liability for such claims, we affirm.

I. Background Facts and Proceedings.

Katherine Avenarius was employed as a police officer by the City of

Dubuque when she attended the Iowa Law Enforcement Academy (ILEA) firearms

instructor school in August 2015.1 Before attending, ILEA required Avenarius to

sign the following form:

WAIVER
RELEASE FROM LIABILITY AND
ASSUMPTION OF RISK AGREEMENT
FOR NON-STATE EMPLOYED LAW ENFORCEMENT OFFICERS
....
I, Katherine M. Avenarius, . . . am currently an employee of
the Dubuque Police Department . . . and in consideration of the
training I am to receive I do hereby enter into this release from liability
and assumption of risk agreement.
Intending this agreement to be legally binding on me, my
heirs, administrators, executors, and assigns, I hereby waive,
release, and hold harmless the State of Iowa, the Iowa Law
Enforcement Academy, and the Iowa Law Enforcement Academy
Council and all of their agents, employees, council members,
representatives, heirs, executors, administrators, successors, and
assigns of and from any and all claims, demands, rights, causes of
action and judgments of whatsoever, kind and nature, arising from
and by reason of any and all known and unknown, foreseen and
unforeseen physical or mental injuries and consequences thereof
which may be suffered by me during the above referenced Iowa Law

1 ILEA is a division of the government of the State of Iowa. See generally Iowa
Code ch. 80B (2015).
3

Enforcement Academy training program including physical fitness
testing.
Please initial at left to each of the terms agreed to:
_____ a) I understand that this training may involve physical contact
and/or exercise and involves a risk of physical injury.
In signing this release I assert that:
_____ b) I have no reason to believe that I am not in good physical
and/or mental health and I know of no reason that I should not or
cannot engage in a rigorous physical training program.
_____ c) I will immediately advise the lead instructor of the training
program of any injuries or other problems that may occur prior to or
during the training program which may in any way affect my safely
completing the training program.
_____ d) I am fully aware of, and do acknowledge and assume all
risk of injury inherent in my participation in this training program.
_____ e) I have read and fully understand the terms and conditions
of this agreement.
A failure to fully accept the terms and conditions of this waiver
may result in being refused admittance into the training program.
As the signatory below, I hereby represent and warrant that I
have the right, power, and authority to enter into this agreement, that
I have taken all requisite action to approve execution, delivery, and
performance of this agreement, and that this agreement constitutes
a legal, valid and binding obligation upon itself in accordance with its
terms.

Avenarius signed the form and initialed next to each statement where specified.

On the first day of firearms instructor school, Avenarius injured herself while

participating in a drill. Before attending the course, Avenarius was trained to put

her finger on the trigger only after locking onto a target. But while she was at the

school, an ILEA firearm instructor told Avenarius to put her finger on the trigger

after unholstering and drawing her firearm. Avenarius followed the instructor’s

direction during the drill and shot herself in the leg.

After following the provisions of the Iowa Tort Claims Act, see Iowa Code

ch. 669, Avenarius and her husband petitioned against the State alleging
4

negligence and loss of consortium.2 The State moved for summary judgment on

the negligence claims, arguing that Avenarius signed a “clear and unequivocal”

waiver and release of liability. The district court denied the motion after finding the

waiver did not contain clear and unequivocal language waiving liability as to the

State’s negligent acts and omissions. It also found there is a genuine issue of

material fact as to whether the firearm instructor negligently instructed Avenarius

to place her finger on the trigger while unholstering her weapon. The State

petitioned for interlocutory appeal, which the Iowa Supreme Court granted.

II. Scope of Review.

We review summary-judgment rulings for correction of errors at law. See

Vreeman v. Jansma, 995 N.W.2d 305, 306 (Iowa Ct. App. 2023). “Summary

judgment is appropriate ‘if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.’” Id. (quoting Iowa R. Civ. Pro. 1.981(3)). In reviewing

the ruling denying summary judgment, we view the record in the light most

favorable to Avenarius and indulge every legitimate inference within reason. See

Hedlund v. State, 930 N.W.2d 707, 715 (Iowa 2019). If reasonable minds could

draw different inferences from the record and reach different conclusions,

summary judgment is not proper. See id.

2 Originally, the petition named ILEA and the firearms instructor as defendants. It
alleged negligence by the firearms instructor, negligence by ILEA, and negligence
against ILEA under the doctrine of respondeat superior. The district court granted
the parties’ motion to dismiss ILEA and substitute the State for the individually-
named instructor.
5

III. Discussion.

The State contends the district court erred by denying its motion for

summary judgment because the waiver Avenarius signed bars her negligence

claims. Waivers of liability are forms of contracts, so the principles of contract law

apply. See Huber v. Hovey, 501 N.W.2d 53, 55 (Iowa 1993). We usually review

contract interpretation, which involves ascertaining the meaning of the words used

in the contract, as a question of law.3 Peak, 799 N.W.2d at 543. We always review

contract construction, which involves determining the legal effect of those words,

as a question of law. Id. The cardinal rule of contract construction is that the

parties’ intent controls. Id. at 544. Our focus is on mutual intent, which is

determined by what the parties said rather than what they may have meant. Id.

Thus, a release from liability for negligence claims is valid only if the waiver

contains “‘clear and unequivocal language’ notifying a casual reader that by

signing, she agrees to waive all claims for future acts or omissions of negligence.”

Lukken v. Fleischer, 962 N.W.2d 71, 79 (Iowa 2021).

The district court found that the broad exculpatory provision could not

release the State from liability for its own negligent acts or omissions:

Here, the waiver’s intention would not have been clearly expressed
to [Avenarius] at the time she signed it that she was waiving any
future claims of negligence as to the acts or omissions of the ILEA’s
instructors. [Avenarius] has eight years of previous experience with
firearms, and she would likely have understood there are inherent
risks with firearms. However, it would not have been apparent to her
that she was releasing any and all future claims as to an injury
proximately caused by the negligent acts or omissions of the
instructors.

3 The exception is when interpretation depends on extrinsic evidence. Peak v.
Adams, 799 N.W.2d 535, 543 (Iowa 2011).
6

The State challenges this finding, arguing that the release of liability for “any

and all claims” arising from “any and all known and unknown, foreseen and

unforeseen physical or mental injuries and consequences thereof” sustained

during the ILEA course clearly and unequivocally encompassed negligence

claims. It primarily relies on Korsmo v. Waverly Ski Club, 435 N.W.2d 746, 747

(Iowa Ct. App. 1988), in which the court interpreted an exculpatory provision in a

waiver signed by competitors in a water-skiing tournament. The waiver in Korsmo

released the defendants “from any and all rights, claims, demands and actions of

any and every nature whatsoever that I may have, for any and all loss, damage or

injury sustained by [competitors] . . . before, during, and after said competitions.”

435 N.W.2d at 747. The court found this clear and unambiguous language showed

the plaintiff’s intent to release claims in exchange for participating in the

competition. Id. at 748. Although not specified, the court held the waiver “clearly

intended to” release liability for the defendants’ negligent acts. Id. The State

claims the language of the release in Korsmo is “nearly identical” to the language

used in the document Avenarius signed.

In the thirty-five years since it was decided, Korsmo has lost its vigor.

Although Korsmo expresses a “generalized fear” that failing to enforce releases of

liability would lead parties to stop sponsoring events, the supreme court has since

rejected this fear as “speculative and overstated.” Galloway v. State, 790

N.W.2d 252, 259 (Iowa 2010). We also note that the analysis in Korsmo is

conclusory. The court said that failing to use the words “negligent acts” did not

render the release ambiguous, noting that a contract “need not expressly specify

that it will operate for negligent acts if the clear intent of the language is to provide
7

for such a release.”4 Korsmo, 435 N.W.2d at 748. Without further elaboration, it

then held: “The words ‘any and all rights, claims, demands and actions of any and

every nature whatsoever . . . for any and all loss, damage or injury’ is clearly

intended to cover negligent acts.” Id.

A review of Iowa cases shows Korsmo is an outlier among the published

decisions of our appellate courts. The cases in which the supreme court has found

a release applies to the negligent acts of the releasee have involved exculpatory

clauses that specifically reference the releasee’s negligence. See Lukken, 962

N.W.2d at 75, 82–83 (holding that a release of “any and all liability from any and

all loss or damage . . . arising out of or related to the activities offered at

Mt. Crescent Ski Area whether caused by the negligence of” the defendants

waived claims related to the releasee’s negligence but not to claims involving the

releasee’s willful, wanton, or reckless conduct (emphasis added)); Huber, 501

N.W.2d at 54 (involving a release of liability for “any and all loss or damage, and

any claim or demands therefor on account of injury . . . whether caused by the

negligence of the releasees or otherwise” (emphasis added)); see also Grabill v.

Adams Cnty. Fair & Racing Ass’n, 666 N.W.2d 592, 595 (Iowa 2003) (releasing

liability “FOR ANY AND ALL LOSS OR DAMAGE . . . ARISING OUT OF OR

RELATED TO THE EVENT(S), WHETHER CAUSED BY THE NEGLIGENCE OF

THE RELEASEES OR OTHERWISE” (emphasis added)). The two cases in which

4 In Sweeney v. City of Bettendorf, 762 N.W.2d 873, 879–80 (Iowa 2009), the

supreme court reiterated that Iowa does not require “magic words” if “the intention
to exclude liability for acts and omissions of a party [is] expressed in clear terms.”
But it noted that “the better practice is to expressly use the term ‘negligence’ in the
exculpatory agreement.” Sweeney, 762 N.W.2d at 879 n.2.
8

the court found a release was not specific enough to encompass acts of negligence

by the releasee involved exculpatory provisions that did not state the release

applied to the releasee’s negligence. See Baker v. Stewarts’ Inc., 433

N.W.2d 706, 706–08 (Iowa 1988) (finding that the waiver used by a training salon,

which charged less for work performed by students, releasing liability for damages

or injuries that result from its service did not extend to acts or omissions by the

professional staff because that intention was not clearly and unequivocally

expressed); see also Sweeney, 762 N.W.2d at 875, 880 (holding that a permission

slip stating that the defendant was “not responsible or liable for any accidents or

injuries that may occur” to children participating in a field trip “[did] not constitute

an enforceable anticipatory release of claims against the City for its negligent acts

or omissions in connection with the field trip”).

The State also cites two recent unpublished opinions of this court:

Transgrud v. Leer, No. 19-0692, 2020 WL 5650734, at *1, *6 (Iowa Ct. App.

Sept. 23, 2020), and Cupps v. S & J Tube, Inc., No. 17-1922, 2019 WL 156583,

at *4–5 (Iowa Ct. App. Jan. 9, 2019). We address each in turn. Because the result

in Transgrud relies partly on Cupps, we begin there.

The plaintiff in Cupps signed an application for employment with a

temporary agency, stating:

I acknowledge and agree that even though my work related activities
may be under the control and direction of the Customer [S & J], my
sole legal remedies in the event of a work related injury will be [the
temporary agency’s] workers’ compensation insurance and will not
include any claim for damage against that Customer.

2019 WL 156583, at *1. When the plaintiff slipped and fell during a work

assignment with one of the agency’s customers, he sued the agency’s customer
9

for negligence. Id. at *1–2. Finding the employee’s injury was work-related, the

district court granted summary judgment for the customer based on the

exculpatory clause in the signed employment application. Id. at 2. On appeal, we

found the clause was unambiguous in limiting the employee’s recovery for work-

related injuries to the agency’s workers’ compensation.5 Cupps, 2019 WL 156583,

at *4–5. Because the employee waived all claims against the agency’s customers,

including negligence claims, we affirmed. Id. at 5.

In reaching our conclusion in Cupps, this court distinguished Sweeney and

Baker based on the availability of a remedy:

In Sweeney and Baker, the exculpatory clauses purported to relieve
all liability and would have left the injured parties without any remedy.
Here, the exculpatory clause does not extinguish all remedies but
directs that [the plaintiff]’s sole remedy will be workers’ compensation
benefits, which he admitted he received in a settlement. See Kelly[,
2012 WL 5356104, at *3] (distinguishing the reasoning of Sweeney
where the exculpatory clause does not prevent recovery but directs
recovery to workers’ compensation).

Id. at *4 n.2. The same distinction is not present here because the exculpatory

provision leaves Avenarius without remedy. On this basis, the facts are more akin

to Sweeney and Baker than to Cupps and the cases cited in footnote 5.

We turn then to Transgrud, which involved a plaintiff who was injured while

riding as a passenger in a semi-tractor. 2020 WL 5650734, at *1. The plaintiff’s

husband drove the vehicle, which his employer owned. Id. Before riding in the

5 Cupps is one of several cases upholding similar exculpatory provisions in
contracts for temporary employment. See Taylor v. Gazette Commc’ns, Inc.,
No. 19-1611, 2020 WL 3265025, at *3 (Iowa Ct. App. June 17, 2020) (“We do not
find the CEA’s exculpatory clause to be materially distinguishable from
Cupps . . . .”); Hargrave v. Grain Processing Corp., No. 14-1197, 2015 WL
1331706, at *3 (Iowa Ct. App. Mar. 25, 2015); Kelly v. Riser, Inc., No. 11-1898,
2012 WL 5356104, at *3 (Iowa Ct. App. Oct. 31, 2012).
10

vehicle, the plaintiff signed a document titled “PASSENGER AUTHORIZATION

AND RELEASES OF LIABILITY,” stating:

By signing below, Passenger acknowledges and agrees that
Passenger is not an employee of V&M or an independent contractor
providing goods or services to V&M. Passenger further
acknowledges and understands that V&M will not pay any amount of
any accident, injury, loss, or damage arising out of or related to
Passenger riding in the equipment and that V&M will not provide a
policy of insurance that provides coverage, including workers’
compensation coverage, for Passenger or Passenger’s property.

Id. Under a section titled, “RELEASES OF LIABILITY,” it states:

In consideration for V&M’s authorization to allow Passenger to ride
in the Equipment, Passenger . . . , by signing below, hereby releases
V&M, with respect to the authorized transportation, from any and all
claims, liability, rights, actions, suits, and demands . . . that
Passenger may have against V&M. . . . Moreover, this signed
Release may be pleaded by V&M as a counterclaim to or as a
defense in bar or abatement of any action of any kind whatsoever
brought, instituted, or taken by or on behalf of Passenger.

Id. When the plaintiff sued the employer for its negligence in maintaining the

vehicle and training its drivers on how to handle unusual situations, the district

court found the release was valid and granted summary judgment in favor of the

employer. Id.

On appeal, the plaintiff cited Sweeney and argued the signed document

was ambiguous because it failed to state the type of liability it released clearly and

unequivocally. Id. at *5. We distinguished the document from the permission slip

in Sweeney, finding that its “provisions, including multiple titles in all capital letters

highlighting the document as a release, are clear and unequivocal and would be

apparent to a casual reader.” Id. at *6. We then compared it to the release in

Cupps:
11

In that case, we considered the phrase “any claim for damage” as
used in an employment application submitted to a temporary
employment agency. [Cupps, 2019 WL 156583,] at *1. Rejecting
the argument that the phrase was ambiguous and distinguishing
Sweeney, our court ruled the phrase “clearly means that if the signer
suffers a work-related injury, the only remedy is [the agency’s]
workers’ compensation and the remedies do not include any claim
for damage, including negligence.” Id. at *5. We find Cupps
persuasive and conclude the phrases “will not pay any amount of any
accident, injury, loss or damage arising out of or related to Passenger
riding in the equipment” and “hereby releases [the employer] from
any and all claims, liability, rights, actions, suit, and demands” are
unambiguous. By signing the release, [the plaintiff] acknowledged
[the employer] would not pay for any injuries she received while
riding in Unit #388 as Vee’s passenger, including injuries arising from
allegedly negligent conduct. The district court correctly concluded
the release was not ambiguous.

Transgrud, 2020 WL 5650734, at *6.

To the extent that the releases in Cupps and Transgrud state the signer

releases “any” or “all” claims against the releasee, Avenarius’s release “from any

and all claims, demands, rights, causes of action and judgments of whatsoever,

kind and nature” is similar. But the similarities are superficial. The release in

Cupps is limited to waiver of damage claims against an agency customer for “work

related injury.” 2019 WL 156583, at *1. It further specifies that “my sole legal

remedies in the event of a work related injury will be the [agency’s] workers’

compensation insurance.” Id. The release in Transgrud applies only to damage

claims “arising out of or related to Passenger riding in the equipment” and “with

respect to the authorized transportation.” 2020 WL 5650734, at *1. The document

also specifies that “that Passenger is not an employee of V&M or an independent

contractor” and that the employer “will not provide a policy of insurance that

provides coverage, including workers’ compensation coverage, for Passenger or

Passenger’s property.” Id.
12

The release Avenarius signed uses the broadest language possible,

waiving damage claims “arising from and by reason of any and all known and

unknown, foreseen and unforeseen physical or mental injuries and

consequences.” It applies to injuries that “may be suffered by [Avenarius] during

the . . . [ILEA] training program” without specifying the nature of those injuries. The

only additional specification is a statement that the program would include

“physical fitness testing.” Avenarius was also required to place her initials next to

statements that further reference her physical and mental fitness and a “rigorous

physical training program.” One statement required that Avenarius inform the

instructors immediately of “any injuries or other problems” she suffers that “may in

any way affect [her] safely completing the training program.” The statement

implies that Avenarius would be at risk of injuries inherent to her rather than ones

from external sources. Another statement says that Avenarius acknowledges and

assumes “all risk of injury inherent in my participation in this training program” but,

again, does not specify the risks encompassed. There is no clear expression of

Avenarius’s intent to release the State from liability for claims related to the

negligent acts of ILEA or its instructors, either in the express language of the

release or the context provided. Because we will not find such intent unless clearly

and unambiguously expressed, we agree that the release does not apply to claims

of negligence by ILEA or its instructors. On this basis, the district court properly

denied the State’s motion for partial summary judgment.6

AFFIRMED.

6 Because we affirm on this ground, we need not address Avenarius’s claims that

the waiver is not enforceable as a contract of adhesion or against public policy.