COA reverses summary judgment for defendants in teen shooting accident, cites contemporaneous writing rule

A young man who was shot and seriously injured while working on a southern Indiana farm and then signed a series of releases protecting the defendants from liability in exchange for $5,000 will get a new day in court after the Indiana Court of Appeals overturned a grant of summary judgment.

John Levi Bird was shot in the abdomen after he and another minor, D.G., discovered a loaded rifle in the chicken coop they were cleaning at Valley Acre Farms Inc. When he recovered from his life-threatening injuries, he filed a lawsuit against D.G. and D. G’s parents as well as Valley Acre shareholder David Bagshaw and premises owner Geneva Bagshaw.

The defendants responded with three releases which Bird signed. In May, the release addressed “full settlement of all claims resulting from said accident” and was offered along with a covenant that protected D.G. from any judgment. Later, the defendants offered a December release stating the contract did not release any claims against Valley Acre or the Bagshaws.

Each of the documents stated that a $5,000 payment was the consideration for the release.

Subsequently, Valley Acre filed a motion for summary judgment, contending all the defendants had been released from liability as part of the May release. The Washington Circuit Court granted the motion after it found the terms of the May release were clear and unambiguous.

Bird appealed and the Court of Appeals reversed and remanded in John Levi Bird v. Valley Acre Farms, Inc., David Bagshaw, 21A-CT-589.

Before the appellate court, Bird argued the May release was rescinded and was moot, arguing the trial court should have looked at all the documents and determined the defendants’ intent through a broader examination. In addition, he asserted the contemporaneous writing rule permits consideration of the covenant.

The Court of Appeals held summary judgment was improvidently granted. In the opinion written by Judge L. Mark Bailey, the court explained it could not say “as a matter of law, without factual development,” that the May release was “executed in exchange for proper consideration” and that the December document was not.

Next, the appellate panel turned to Bird’s contemporaneous writing rule argument.

“The May Release purports to release all parties and claims and contains no contradictory language within the body of the document,” Bailey wrote for the court. “However, the title is inconsistent and there is no merger clause; the Covenant was executed the same day and specifically contemplates ongoing litigation. It pertains to the same subject matter — Bird’s surrender of rights to pursue and hold liable those allegedly responsible for his injuries. Any liability on the part of D.G.’s parents is not due to their independent conduct but is derivative of D.G.’s liability. … Additionally, the December Release expresses intent to release only D.G.’s parents.”

Consequently, the Court of Appeals found the criteria for consideration of a document under the rule was satisfied and that, by construing the language of the May release together with the language of the other documents, it was clear a limited release was intended.

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