            SUPREME COURT OF MISSOURI
                                        en banc
CYNTHIA DeCORMIER,                           )
                                             )
                           Appellant,        )
                                             )
v.                                           )   No. SC93702
                                             )
HARLEY-DAVIDSON MOTOR                        )
COMPANY GROUP, INC. and                      )
ST. LOUIS MOTORCYCLE, INC.                   )
d/b/a GATEWAY HARLEY-DAVIDSON,               )
                                             )
                           Respondents.      )

          APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY
                   The Honorable John D. Warner, Jr., Judge

                          Opinion issued November 12, 2014

      Cynthia DeCormier filed a personal injury action against Harley-Davidson Motor

Company Group, Inc., (Harley-Davidson) and St. Louis Motorcycle, Inc., d/b/a Gateway

Harley-Davidson (Gateway), after sustaining injuries while participating in a motorcycle

training course. Harley-Davidson and Gateway filed a motion for summary judgment on

the basis of a liability release Ms. DeCormier signed before participating in the course.

The circuit court sustained the motion and granted summary judgment in favor of Harley-

Davidson and Gateway. On appeal of the circuit court’s judgment, Ms. DeCormier

claims the circuit court erred in granting summary judgment because the liability release

she signed is unenforceable against claims of gross negligence or recklessness and there

is a genuine dispute as to whether the defendants were grossly negligent or reckless.
Even if Ms. DeCormier pleaded the type of claim against which a release of liability is

unenforceable, Ms. DeCormier failed to demonstrate that a genuine dispute exists

regarding whether Harley-Davidson and Gateway acted in reckless disregard for her

safety and, therefore, whether the release is unenforceable. Accordingly, this Court

affirms the circuit court’s judgment.

                           Facts and Procedural Background

       On April 13, 2008, Ms. DeCormier participated in the Rider’s Edge New Rider’s

Course, an instructional course for new motorcycle riders sponsored by Harley-Davidson

and conducted by employees of Gateway at Gateway’s place of business in St. Louis.

The Gateway employees instructing the course were certified by the Motorcycle Safety

Foundation (MSF), and MSF supplied the curriculum for the course.

       Before participating in the course, Ms. DeCormier signed a “Release and Waiver,”

which provided in pertinent part:

       I hereby RELEASE AND FOREVER DISCHARGE (i) Harley–
       Davidson Motor Company, Inc., Harley–Davidson, Inc., . . . each of their
       respective parent, subsidiary, and affiliated companies . . .; [and] (ii) all
       authorized dealers of Harley–Davidson Motor Company . . . who are
       sponsoring or conducting the [New Rider Course] . . . (hereinafter all
       collectively referred to as “Released Parties”) from ANY AND ALL
       CLAIMS, DEMANDS, RIGHTS, CAUSES OF ACTION AND
       LOSSES (collectively, “CLAIMS”) OF ANY KIND WHATSOEVER
       THAT I . . . NOW HAVE OR LATER MAY HAVE AGAINST ANY
       RELEASED PARTY IN ANY WAY RESULTING FROM, OR
       ARISING OUT OF OR IN CONNECTION WITH, MY
       PARTICIPATION IN THE [NEW RIDER COURSE] . . ..

       I acknowledge and understand that this Release EXTENDS TO AND
       RELEASES AND DISCHARGES ANY AND ALL CLAIMS I . . . have
       or may have against the Released Parties arising out of my participation in
       the [New Rider Course], including without limitation all such Claims
       resulting from the NEGLIGENCE of any Released Party. . ..

While riding her motorcycle during the course, Ms. DeCormier sustained injuries.

       Ms. DeCormier filed a two-count petition against Harley-Davidson and Gateway,

alleging that the course instructors directed her to perform motorcycle exercises while the

range was icy and slippery. In the first count, labeled “Negligence,” Ms. DeCormier

alleged that the instructors “instructed [Ms. DeCormier] to perform motorcycle exercises

on the training course,” “knew or should have known that the icy conditions of the course

created an unreasonable risk of bodily harm,” and “knew or should have known that an

inexperienced rider on icy or slippery conditions created an unreasonable risk of bodily

harm.” In the second count, labeled “Premises Liability,” Ms. DeCormier stated that

Harley-Davidson’s and Gateway’s negligence and recklessness directly caused the

accident in that the instructors “knew or should have known that the motorcycle track

[had] become wet and icy, therefore creating a dangerous condition;” and “knew, or by

the use of ordinary care, could have known that the existence of the wet and icy

conditions posed a substantial risk of bodily harm to its students, but continued to instruct

students to ride on the motorcycle track.”

       Harley-Davidson and Gateway jointly moved for summary judgment on the basis

of the affirmative defense of release. They asserted that, prior to taking the course,

Ms. DeCormier signed an agreement releasing them from any future claim of negligence

arising out of Ms. DeCormier’s participation in the program. Harley-Davidson and

Gateway claimed the release barred Ms. DeCormier’s action.


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       In her response to the summary judgment motion, Ms. DeCormier admitted to

signing the release but asserted that Harley-Davidson and Gateway were not entitled to

judgment because the release could not, as a matter of law, waive liability for gross

negligence or recklessness and there is a genuine dispute of material fact whether Harley-

Davidson’s and Gateway’s negligence rose to the level of recklessness or gross

negligence. Ms. DeCormier alleged in her “statement of additional facts” that: (1) the

MSF has promulgated rules for instructors conducting courses for new riders; (2) in the

instructor’s guide, MSF “takes the position that training not be conducted during a

thunderstorm, snowstorm, windstorm, with ice on the range, or if the [instructors]

determine the safety of the students is at risk;” and (3) “there was rain, drizzle, snow, and

mist on the day of the course, as indicated by the certified record of river and

climatological observations.” The reference to evidentiary support for these statements

was to the MSF Basic RidersCourse Rider Coach Guide and the Certified Records of

River and Climatological Observations. Harley-Davidson and Gateway admitted these

additional facts. Ms. DeCormier further stated that, despite the weather conditions, the

instructors continued to send riders out on the range to perform motorcycle exercises and

instructed her to perform an exercise when her bike slipped and landed on her leg. The

reference to evidentiary support for these statements was to paragraphs of the defendants’

Exhibit A, which was Ms. DeCormier’s petition. Harley-Davidson and Gateway denied

these facts.

       The circuit court sustained the motion for summary judgment and entered

judgment in favor of Harley-Davidson and Gateway.             Thereafter, Ms. DeCormier

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appealed. After an opinion by the court of appeals, the case was transferred to this Court.

Mo. Const. art. V, sec. 10.

                                  Standard of Review

       Summary judgment is appropriate only when the moving party demonstrates there

is no genuine dispute about material facts and, under the undisputed facts, the moving

party is entitled to judgment as a matter of law. Rule 74.04(c)(6); ITT Commercial Fin.

Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 380 (Mo. banc 1993). One

way a defending party may establish a right to summary judgment is to show there is no

genuine dispute as to the existence of each of the facts necessary to support a properly

pleaded affirmative defense. ITT Commercial Fin. Corp., 854 S.W.2d at 381. “Facts set

forth by affidavit or otherwise in support of a party’s motion are taken as true unless

contradicted by the non-moving party’s response to the summary judgment motion.” Id.

The non-moving party’s “denial may not rest upon the mere allegations or denials of the

party’s pleading. Rather, the response shall support each denial with specific references

to the discovery, exhibits or affidavits that demonstrate specific facts showing that there

is a genuine issue for trial.” Rule 74.04(c)(2). The non-moving party must attach to its

response copies of all discovery, exhibits, or affidavits on which the non-moving party

relies. Id. This Court’s review of summary judgment is de novo. Roe v. Replogle, 408

S.W.3d 759, 763 (Mo. banc 2013).

                Release Cannot Exempt Liability for Reckless Conduct

       On appeal, Ms. DeCormier asserts the circuit court erred in entering judgment in

favor of Harley-Davidson and Gateway on the basis of the release because a party cannot

                                            5
exonerate oneself from future liability for gross negligence or recklessness and there

exists a genuine dispute whether Harley-Davidson and Gateway were grossly negligent

or reckless. While exculpatory agreements will be strictly construed, this Court will

enforce exculpatory agreements to protect a party from liability for their own negligence.

Alack v. Vic Tanny Int’l of Mo., Inc., 923 S.W.2d 330, 334 (Mo. banc 1996).

Ms. DeCormier cannot avoid this rule by alleging Harley-Davidson and Gateway were

grossly negligent because Missouri courts do not recognize degrees of negligence at

common law. See Fowler v. Park Corp. 673 S.W.2d 749, 755 (Mo. banc 1984); Warner

v. Sw. Bell Tel. Co., 428 S.W.2d 596, 603 (Mo. 1968); Edwards v. Gerstein, 363 S.W.3d

155, 165 (Mo. App. 2012).

      Assuming, without deciding, that Harley-Davidson and Gateway’s release cannot

be enforced to protect them against liability for reckless conduct and that Ms. DeCormier

sufficiently pleaded the affirmative avoidance of the unenforceability of her release, 1

Harley-Davidson and Gateway were still entitled to summary judgment because

Ms. DeCormier failed to meet her burden to show Harley-Davidson and Gateway were

reckless. The definition of “recklessness” in the Restatement (Second) of Torts has been

long utilized in Missouri cases.     See Hoover’s Dairy, Inc. v. Mid-Am. Dairymen,

Inc./Special Prods., Inc., 700 S.W.2d 426, 435 (Mo. banc 1985); Sharp v. Robberson,

495 S.W.2d 394, 398 (Mo. banc 1973); Nichols v. Bresnahan, 212 S.W.2d 570, 573 (Mo.



1
  Harley-Davidson and Gateway assert that they were entitled to summary judgment on
the basis of the release because Ms. DeCormier failed to plead the unenforceability of the
release as an affirmative avoidance.

                                            6
1948); Jordan v. Gen. Growth Dev. Corp., 675 S.W.2d 901, 906 (Mo. App. 1984).

Conduct is in reckless disregard of another if the actor:

       [A]ct[s] or fails to do an act which it is [the actor’s] duty to the other to do,
       knowing or having reason to know of facts which would lead a reasonable
       man to realize that the actor's conduct not only creates an unreasonable risk
       of . . . harm to the other but also involves a high degree of probability that
       substantial harm will result to [the other.]

Nichols, 212 S.W.2d at 573. (quoting Restatement (Second) of Torts sec. 500 (1965)).

       It is undisputed that the MSF training materials used by the instructors stated that

“training [should] not be conducted during a thunderstorm, snowstorm, windstorm, [or]

with ice on the range.” It is also undisputed that “there was rain, drizzle, snow, and mist”

in the area on the day Ms. DeCormier was injured, a fact that gives rise to the reasonable

inference that there was rain, drizzle, snow, and mist on the range during the course. 2 It

is further undisputed that the training was performed according to MSF standards and

that those standards require RiderCoaches to continuously observe and evaluate

participants. From these facts, it could be concluded that Harley-Davidson and Gateway

should have known facts from which a reasonable person would realize that continuing to

send out riders to perform motorcycle exercises would create a high degree of probability

of substantial harm to the riders.

       In opposition to the summary judgment motion, Ms. DeCormier also stated that

the track started to become icy and slippery but that, despite those conditions, the

2
 To prove the weather conditions on that date, Ms. DeCormier attached to her statement
of additional material facts a certified record of river and climatological observations.
This record was not a part of the legal file before this Court; however, Harley-Davidson
and Gateway admitted to the fact that there was rain, drizzle, snow, and mist on April 13,
2008, in their reply brief, which is a part of the record in this Court.

                                              7
instructors failed to take any action to remedy the slick and dangerous condition and

continued to send riders out on the course to perform exercises. She further stated that

the instructors directed her to perform motorcycle exercises in icy and slippery conditions

and that, while she was doing so, her bike slipped and landed on her leg, causing her

severe injuries.   The evidentiary support for these facts cited in her response was

defendant’s Exhibit A. Harley-Davidson and Gateway’s Exhibit A was Ms. DeCormier’s

petition.

       Ms. DeCormier’s allegations in her petition are insufficient support for her

statement of additional uncontroverted facts. “The purpose of summary judgment is to

move the parties beyond the bare allegations in their pleadings . . ..” Martin v. City of

Washington, 848 S.W.2d 487, 491 (Mo. banc 1993). A party cannot rely on its own

petition to provide the necessary evidentiary support for additional facts alleged in

response to a summary judgment motion. See Bilyeu v. Vaill, 349 S.W.3d 479, 482 (Mo.

App. 2011). 3

       Accordingly, Ms. DeCormier fails to show a genuine dispute as to whether

Harley-Davidson and Gateway intentionally acted or failed to act to cause her injury,

which is necessary to show recklessness. See Nichols, 212 S.W.2d at 573. Therefore,




3
  Bilyeu holds that a party citing to its own petition does not comply with the
requirements in Rule 74.04(c)(1) to support uncontested facts. 349 S.W.3d at 482. Here,
Ms. DeCormier set forth additional facts as allowed by Rule 74.04(c)(2). Nevertheless,
because Rule 74.04(c)(2) requires that any additional facts stated in a party’s response to
a motion for summary judgment be supported in the manner prescribed in Rule
74.04(c)(1), Bilyue is applicable here.

                                            8
Harley-Davidson and Gateway were entitled to judgment on their affirmative defense of

release.

                                         Conclusion

        A party is in reckless disregard of others if the party intentionally acts or fails to

act while knowing or having reason to know of facts from which a reasonable person

would realize such conduct creates an unreasonably high degree of risk of substantial

harm.      Id.   In response to Harley-Davidson and Gateway’s motion for summary

judgment, Ms. DeCormier did not show a genuine dispute as to whether Harley-Davidson

and Gateway were reckless by specifically referencing discovery, exhibits, and affidavits,

as a non-moving party is required to do to defeat a summary judgment motion. Rule

74.04(c)(2). Therefore, this Court affirms the circuit court’s judgment in favor of Harley-

Davidson and Gateway.

                                                   _________________________________
                                                     PATRICIA BRECKENRIDGE, JUDGE


Russell, C.J., Fischer, Stith and
Wilson, JJ., concur; Draper and
Teitelman, JJ., dissent.




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