In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1921

Robert Del Raso,

Plaintiff-Appellant,

v.

United States of America,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 98 C 4542--William J. Hibbler, Judge.


Argued November 15, 2000--Decided March 20,
2001




  Before Posner, Easterbrook, and Kanne,
Circuit Judges.

  Kanne, Circuit Judge. While visiting a
friend stationed at the United States
Army Post at Fort Bragg, North Carolina,
civilian Robert Del Raso fell off a horse
and allegedly injured his back. Believing
that his fall was caused by the failure
of a stable employee to tighten his
saddle, Del Raso sued the United States
under the Federal Tort Claims Act, 28
U.S.C. sec. 1346(b). The district court
granted summary judgment in favor of the
government because it found that Del Raso
released the United States of liability
for the negligence of the stable’s
employee. We affirm.

  The Fort Bragg Riding Stables is a
federal facility administered by Fort
Bragg that provides recreational
equestrian services for military
personnel and their families and friends.
On September 4, 1994 Del Raso and two
friends decided to go riding at the
stables while visiting a friend at the
post. As Del Raso entered the stables, an
employee behind the front counter
instructed him to wait in line and "sign
the waiting list." The "waiting list" was
an 8 by 14 inch document entitled
"RELEASE AND HOLD HARMLESS AGREEMENT--
FORT BRAGG RIDING STABLES COMMUNITY
RECREATION DIVISION FACILITY, FORT BRAGG,
NC 28307-5000" with seven paragraphs of
text underneath the title and a grid with
columns for printed names, signatures,
phone numbers, amounts paid, and other
information. The first three paragraphs
announced that the document was a release
of liability, that a participant’s
signature was required to ride a horse,
and that the information provided would
not be shared with third parties. The
remaining paragraphs stated the terms of
the release, specifying that it was meant
to hold the United States harmless from

any and all causes of action, including
personal injury . . . arising from the
use, enjoyment, and control over the said
horse, saddle, and bridle, including any
and all causes of action . . . arising
out of the saddle or bridle becoming
loose or breaking or the saddle falling
from the horse or the rider being thrown
from the horse by reason of the saddle
becoming or being loose or the bridle
breaking or the nature of the actions of
the horse or the rider or any other
person or animals whatsoever.

This release is intended to cover all
injuries . . . of every name, type, kind
or nature . . . which might be sustained
or suffered from any cause whatsoever
connected with or arising out of or by
reason of the use of said horse, bridle,
or saddle.

  Del Raso and two friends, one in front
and the other behind, entered the line
behind 20 or so other patrons waiting to
sign this document. When Del Raso reached
the counter, he felt pressured to move
out of the way of the persons waiting
behind him, so he glanced at the document
for what he described as "two seconds"
and quickly printed and signed his name
on the sixth line. He and his friends
then waited for about one hour for the
horses to arrive and their ride to begin.
During that time the document remained on
the counter, but Del Raso made no
attempts to read it nor did he ask
questions about it. When the horses
arrived, an employee referred to the
document to call out the names of the
next group of riders.

  After his name was called, Del Raso, who
has a prosthetic leg, requested
assistance in mounting his horse and
placing his feet in the stirrups. While
employee Mark Rossignol assisted him, Del
Raso stated that the saddle felt loose
and asked Rossignol to tighten it.
Rossignol, believing that Del Raso was
simply nervous and inexperienced with
horseback riding, neither checked nor
secured the saddle. During the ride,
however, the saddle slipped and Del Raso
fell to the ground with his prosthetic
leg caught in the stirrup. The horse
dragged him for a short distance, and Del
Raso fractured several vertebrae. He
claims that he now cannot work.

  Del Raso believed that his injury
resulted from Rossignol’s failure to
properly secure the saddle and submitted
a $300,000 claim to the Department of the
Army. The Army Claims Service denied
relief in writing in January 1998, and
Del Raso timely sued the United States
under the FTCA in the Northern District
of Illinois./1 Following discovery, the
United States moved for summary judgment
on the basis that the release barred Del
Raso’s claim. In his response, Del Raso
admitted that he signed the release and
that such releases are generally valid in
North Carolina. Del Raso asserted,
however, that the release should not be
enforced against him because the employee
behind the counter fraudulently induced
him to sign by referring to the release
as a "waiting list" and that both he and
the employee were mutually mistaken as to
its contents and effect. The district
court construed the release to completely
bar Del Raso’s claim and granted summary
judgment in the government’s favor.

  We review de novo the district court’s
order granting summary judgment, drawing
all reasonable inferences from the record
in the light most favorable to the non-
moving party. Stratmeyer v. United
States, 67 F.3d 1340, 1345 (7th Cir.
1995). Summary judgment is appropriate
when, after an adequate time for
discovery, the non-moving party fails to
establish the existence of a genuine
issue of material fact for trial, Fed. R.
Civ. P. 56(c), or make a showing
sufficient to prove an element essential
to his case on which he will bear the
burden of proof at trial, Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986).
Because the alleged tort occurred in
North Carolina, the substantive law of
that state applies, 28 U.S.C. sec.
1346(b); FDIC v. Meyer, 510 U.S. 471, 478
(1994); Stratmeyer, 67 F.3d at 1345, and
we review de novo the district court’s
determination of the content of state
law, Keller v. United States, 58 F.3d
1194, 1197 (7th Cir. 1995).

  A release-and-hold-harmless agreement
based on valuable consideration is a
complete defense to personal injury
action for damages in North Carolina.
Caudill v. Chatham Manufacturing Co., 128
S.E.2d 128, 130 (N.C. 1962); Cunningham
v. Brown, 276 S.E.2d 718, 723 (N.C. Ct.
App. 1981). North Carolina courts, like
those of many other states, do not favor
contracts releasing parties from
liability for their future negligence,
but will nevertheless enforce such
clauses unless they violate a statute,
are gained through an inequality of
bargaining power, or contravene public
policy. Hall v. Sinclair Refining Co., 89
S.E.2d 396, 397 (N.C. 1955); Fortson v.
McClellan, 508 S.E.2d 549, 551 (N.C. Ct.
App. 1998); Johnson v. Dunlap, 280 S.E.2d
759, 763 (N.C. Ct. App. 1981); Andrews v.
Fitzgerald, 823 F. Supp. 356, 378
(M.D.N.C. 1993).

  North Carolina courts have long required
contracting parties to act with
reasonable prudence by reading before
signing a document. See Davis v. Davis,
124 S.E.2d 130, 133 (N.C. 1962); Ward v.
Heath, 24 S.E.2d 5, 9 (N.C. 1943).
Failure to read a contract before signing
it is not grounds for rescission unless
the failure to read the contract is
justified by special circumstances. See
Caudill, 128 S.E.2d at 130; Spartan
Leasing Inc. v. Pollard, 400 S.E.2d 476,
479 (N.C. Ct. App. 1991). Special
circumstances justifying rescission
include fraudulent inducement, Richardson
v. Webb, 460 S.E.2d 343, 344 (N.C. Ct.
App. 1995), and mutual mistake of fact,
Wyatt v. Imes, 244 S.E.2d 207, 208 (N.C.
Ct. App. 1978). The party seeking to
avoid a release that he has admittedly
signed bears the burden of proving
grounds for rescission. Caudill, 128
S.E.2d at 130.

  Del Raso did not dispute the general
validity of the release in the district
court and does not challenge it here.
Instead, he claims that whether the
employee behind the stable’s counter
fraudulently induced him into signing the
release by referring to it only as a
"waiting list" and he and the employee
mistakenly believed that the document was
only a waiting list and not a release are
genuine material issues of fact for a
jury to decide. To establish fraudulent
inducement under North Carolina law, Del
Raso had to prove (1) stable employees
falsely represented or concealed a
material fact; (2) in a manner reasonably
calculated to deceive him; (3) with the
intent to deceive him; (4) and that he
was in fact deceived; (5) to his
detriment. See Myers & Chapman, Inc. v.
Thomas G. Evans, Inc., 374 S.E.2d 385,
391 (N.C. 1988) (citing Odom v. Little
Rock & I-85 Corp., 261 S.E.2d 99, 103
(N.C. 1980)). Del Raso and his friends
testified at their depositions that the
employee behind the counter never once
disclosed that the document was a release
rather than a waiting list. This
characterization, Del Raso claims,
reflects the employee’s intent to
deceive, particularly when considered in
combination with the number of persons
waiting to sign, the pressure Del Raso
felt to move away from the counter, and
the fact that patrons were not supplied
with a copy of the release. And since he
is the beneficiary of all reasonable
inferences as the party opposing summary
judgment, he argues, he has raised a
genuine issue of material fact for trial.

  But even assuming that the reference to
the document as a waiting list was indeed
a misrepresentation--which appears not to
be the case because the employees
actually did use it as a waiting list--it
is the only evidence in the record that
Del Raso identifies as proof of the
employee’s fraudulent intent. North
Carolina courts will not infer fraudulent
intent from misrepresentation or reckless
disregard for the truth alone. Myers &
Chapman, 374 S.E.2d at 391; Eastern Steel
Prod. Corp. v. Chestnutt, 113 S.E.2d 587,
593 (N.C. 1960); Bolton v. T.A. Loving
Co., 380 S.E.2d 796, 807 (N.C. Ct. App.
1989). Moreover, Del Raso has not
demonstrated that he was in fact deceived
or that he reasonably relied on the
misrepresentation. The document was
titled "RELEASE AND HOLD HARMLESS
AGREEMENT," Del Raso had ample time after
exiting the line to examine the document
yet chose not to do so, and has not cited
to anything in the record suggesting that
the employees prevented him from reading
the document. Because Del Raso could have
read the release but did not, and has not
identified any evidence reasonably
suggesting that the employee behind the
counter prevented him from reading it, he
had imputed knowledge of its contents.
Spartan Leasing, 400 S.E.2d 479-80. Del
Raso has not suggested that he would not
have signed the document if he had been
told that it was a release, and therefore
summary judgment was appropriate on this
claim.

  We likewise reject his contention that
he and the stable employee were mutually
mistaken that the document was a waiting
list rather than a release agreement. A
mutual mistake of fact is a mistake
common to the parties to a contract
concerning the contract’s content or
legal effect that, by reason of the
mistake, induces each party to do what
neither intended. See Creech v. Melnik,
495 S.E.2d 907, 912 (N.C. 1998); Sykes v.
Keiltex Industries, Inc., 473 S.E.2d 341,
344 (N.C. Ct. App. 1996). Even if Del
Raso and the stable employee were
similarly mistaken as to the document’s
legal effect, there was no mutual mistake
because the stable employee was not a
party to the contract. The United States
was the released party, and it knew that
the document was a release. Therefore,
Robert Del Raso has not met his burden of
showing that a genuine issue of material
fact exists for trial. The judgment of
the district court is

AFFIRMED.

/1 FTCA claims may be brought in the district where
either the alleged tort occurred or the plaintiff
resides. 28 U.S.C. sec. 1402(b).
