                          STATE OF MICHIGAN

                           COURT OF APPEALS



ELIZABETH BUDROS,                                                   UNPUBLISHED
                                                                    October 5, 2017
               Plaintiff-Appellant,

v                                                                   No. 334189
                                                                    Grand Traverse Circuit Court
WOMENS’ FLAT TRACK ROLLER DERBY                                     LC No. 2015-031272-NI
ASSOCIATION and TRAVERSE CITY ROLLER
DERBY,

               Defendants-Appellees.


Before: TALBOT, C.J., and O’CONNELL and O’BRIEN, JJ.

PER CURIAM.

        Plaintiff, Elizabeth Budros, appeals as of right the trial court’s grant of summary
disposition under MCR 2.116(C)(7) (waiver) and (10) (no genuine issue of material fact) to
defendants, Womens’ Flat Track Derby Association (WFTDA) and Traverse City Roller Derby
(TCRD). Budros alleged that the negligence or gross negligence of defendants caused her injury
during a roller derby practice at TCRD’s facility. We affirm.

                                            I. FACTS

        TCRD is a roller derby league and was a member of WFTDA, which is a national
association of women’s flat track roller derby leagues. WFTDA published a safety protocol that
establishes safety guidelines for its members. Compliance with the guidelines is a necessary
condition for WFTDA insurance coverage, but compliance is not necessary for a league to be a
member of WFTDA.

        TCRD leased space at an outlet mall that it used as a roller derby rink. TCRD admitted
that a portion of the wall outside of the roller derby track was within fewer than five feet of the
track and thus did not meet WFTDA’s safety guideline requiring five feet of clearance between a
wall and the outside edge of the track. The purpose of the five-foot clearance was to create a
buffer zone for skaters’ safety because skaters aim to land outside the track when they fall.

         Budros went to the TCRD rink and participated in a non-contact pace drill called “fast to
fastest.” Budros purchased WFTDA insurance before skating, which included a waiver of
liability. TCRD’s athletic director, Angela Stricker, showed Budros around the track. Stricker
maintained that she pointed out the wall that was too close to the track edge, as well as other

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potential hazards. Budros denied that Stricker did so. During the drill, the skater behind Budros
fell, causing other skaters to pile up. When Budros swerved to avoid hitting the piled-up skaters,
she hit the wall while trying to stop. As a result, she broke her arm.

        Budros filed a four-count complaint that alleged one count of ordinary negligence and
one count of gross negligence against each defendant. The trial court granted summary
disposition on all claims. The trial court concluded that Budros’s signed waiver extinguished her
claims of ordinary negligence and that defendants’ actions did not rise to the level of gross
negligence.

                                          II. ANALYSIS

                                  A. STANDARD OF REVIEW

        We review de novo a grant of summary disposition. Xu v Gay, 257 Mich App 263, 266;
668 NW2d 166 (2003). Summary disposition under MCR 2.116(C)(7) is proper if there is a
valid release of liability. This Court accepts the plaintiff’s allegations as true and construes them
in the light most favorable to her, unless documentary evidence contradicts her claims. Id.
When we review a grant of summary disposition under MCR 2.116(C)(10), we consider the
pleadings and the evidence in the light most favorable to the nonmoving party, and we will
affirm the grant of summary disposition if no genuine issue of material fact remains. Id. at 267.

                                 B. ORDINARY NEGLIGENCE

       We affirm the trial court’s grant of summary disposition against Budros’s ordinary
negligence claims because Budros’s waiver was effective.

       A valid waiver or release of liability defeats an ordinary negligence claim. Id. at 269.
We examine the parties’ intent to evaluate the validity of the waiver. Paterek v 6600 Ltd, 186
Mich App 445, 449; 465 NW2d 342 (1990). A valid waiver must be “fairly and knowingly
made.” Id. A release is invalid if the party signing the release was dazed or shocked, if the party
requesting signature of the release misrepresents its contents, or if the circumstances reflect
fraud. Id. We agree with the trial court that the language of the electronically signed waiver
included in the WFTDA insurance purchase agreement was clear and extinguished Budros’s
ordinary negligence claims.

        Budros argues that the release is invalid because it was part of an insurance purchase
agreement and not a separate document clearly labeled a release. We rejected a similar argument
in Paterek, in which the plaintiff described the waiver as part of a document that an official told
him was an official team roster that he had to sign to play in the softball league. Id. at 449-450.
The plaintiff’s argument in Paterek that he did not know what the document contained did not
invalidate the release. Id. at 450.

        In the case at hand, the page showing Budros’s electronic signature bears the caption
“2014 Release and Waiver of Liability, Assumption of Risk, and Indemnity Agreement.” In
alternating ordinary and boldface font, the passage informed Budros about the risks of the
activity and clearly stated that she assumed the risks of her own negligence. The passage
additionally provided that Budros shall:

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       HEREBY RELEASE, DISCHARGE, AND COVENANT NOT TO SUE the
       sanctioning organization(s), their administrators, directors, agents, officers,
       members, volunteers, and employees, other participants, officials, rescue
       personnel, sponsors, advertisers, owners and lessees of Premises on which the
       Activity is conducted, (each of the forgoing shall be considered one of the
       RELEASEES herein) FROM ALL LIABILITY, CLAIMS, DEMANDS,
       LOSSES, OR DAMAGES ON MY ACCOUNT CAUSED, OR ALLEGED TO
       BE CAUSED, IN WHOLE OR IN PART BY THE NEGLIGENCE OF THE
       RELEASEES OR OTHERWISE, INCLUDING NEGLIGENT RESCUE
       OPERATIONS . . . .

Budros argues that the waiver was ambiguous and thus invalid because it did not name the
WFTDA or the TRCD as releasees. We rejected a similar argument in Dombrowski v City of
Omer, 199 Mich App 705, 707-708; 502 NW2d 707 (1993), in which we concluded that a
release need not name each party because the waiver’s general reference to all participants was
sufficient. Similarly, the waiver in this case is comprehensive enough to cover both defendants
without naming them specifically, particularly because Budros completed the document at the
TCRD facility, which is dedicated to roller derby activity.

        Budros contends that defendants misrepresented the nature of the document by
instructing her to purchase insurance without advising her that the insurance purchase agreement
contained a waiver. This Court rejected a parallel argument in Paterek. In that case, plaintiff
argued that the recreational facility misrepresented the nature of the document as a team roster
when it also included a waiver of rights. Paterek, 186 Mich App at 448-449. Paterek explained
that misrepresentation connoted intent to deceive, but the plaintiff offered no evidence of
deceitful intent. Id. at 449.

       In this case, accepting as true Budros’s claim that no one told her that the insurance
agreement included a waiver of liability, Budros did not claim that defendants attempted to
deceive her about the agreement’s contents, conceal its contents, or prevent her from reading its
contents before signing. Further, Budros did not claim that she would not have signed the
insurance purchase agreement or that she would have declined to participate in the drill if she
had been aware of the form’s contents.

       Finally, Budros’s argument that defendants did not advise her that the contents of the
insurance purchase agreement included a waiver amounts to an admission that she did not read
the purchase agreement before signing it. Failing to read an agreement, in the absence of fraud
or mutual mistake, does not render it invalid and unenforceable. Paterek, 186 Mich App at 450.

                                  C. GROSS NEGLIGENCE

       We affirm the trial court’s summary dismissal of Budros’s gross negligence claims
because the evidence does not raise a factual question on whether defendants disregarded
Budros’s safety. To avoid summary disposition on her gross negligence claims, Budros must
show that defendants acted so recklessly that they demonstrated “a substantial lack of concern
for whether” she suffered an injury. Xu, 257 Mich App at 269.


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        Accepting as true Budros’s claim that Stricker did not warn her about the wall, Budros
still has not shown a reckless disregard for her safety. Defendants did not contest that the
placement of the wall with respect to the track edge violated the safety protocol. Indeed,
defendants admitted that the wall was too close to the track edge. However, this knowledge
alone does not constitute gross negligence. Defendants explained that it was not possible to
move the wall or build the track differently because of the shape and size of the space.
Accordingly, TCRD took other measures to mitigate the risk posed by the wall’s proximity,
including taping stripes on the floor where the outside referee lane was narrower by the wall,
warning skaters about the wall, and having skaters shout “wall” to warn other skaters to avoid
contact when approaching the area. We affirm the trial court’s grant of summary disposition on
Budros’s gross negligence claim.

       We affirm.

                                                         /s/ Michael J. Talbot
                                                         /s/ Peter D. O’Connell
                                                         /s/ Colleen A. O’Brien




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