Moreover, appellant has not alleged any claims resulting from intentional or willful acts. Appellant relies primarily on Nimis v. St. Paul Turners, 521 N.W.2d 54 (Minn.App. 1994) for support that the release should not be enforced. In Nimis, the plaintiff agreed to release the defendant from liability for injuries "caused or alleged to be caused in whole or in part by the negligence of the . . . [defendant] or otherwise."
" Minnesota recognizes the validity of, but does not favor, exculpatory clauses." Nimis v. St. Paul Turners, 521 N.W.2d 54, 57 (Minn.Ct.App.1994). Such provisions " will be strictly construed against the benefited party."
See also Honeywell, Inc. v. Ruby Tuesday, Inc., 43 F. Supp. 2d 1074 (D. Minn. 1999) (enforcing exculpatory clause with respect to allegations of negligence even though clause also included broader language that could be interpreted as extending to intentional, willful, or wanton acts). In Nimis v. St. Paul Turners, 521 N.W.2d 54 (Minn. App. 1994), the court indicated that the exculpatory clause at issue was unenforceable in its entirety because in addition to releasing liability for negligence it included ambiguous language that arguably extended to intentional acts. However, the Nimi court ultimately held that the release had expired at the time of the plaintiff's injury and, therefore, the plaintiff was not subject to any waiver. Therefore, the Nimi court's statements regarding the unenforceability of the exculpatory clause are dicta.
Other holdings of this court are in accord. See Nimis v. St. Paul Turners, 521 N.W.2d 54, 57-58 (Minn. App. 1994) (declining to enforce only that portion of a clause that was ambiguous and that appeared to release property owner from injuries caused intentionally, instead of the entire clause); Malecha v. St. Croix Valley Skydiving Club, Inc., 392 N.W.2d 727, 729-30 (Minn. App. 1986) (holding that clause, which "could be construed to extend beyond acts of negligence," was limited to release of liability for negligence and noting that plaintiff alleged only that defendant had been negligent), review denied (Minn. Oct. 29, 1986).
Appellants claim that the term "or otherwise" found in the exculpatory provisions creates an ambiguity because it is overbroad and purports to release WelshCo from liability for intentional, willful, or wanton acts. They cite Nimis v. St. Paul Turners, in which this court stated that the language "or otherwise" in an exculpatory provision "is ambiguous in scope as to whether it releases [respondents] for injuries caused intentionally, and therefore we will not enforce it." 521 N.W.2d 54, 58 (Minn. App. 1994). But this statement is dicta and not binding.
" was ambiguous in scope as to whether it also released the club for injuries caused intentionally. 521 N.W.2d 54, 57 (Minn.App. 1994). She then points to Schlobohm as involving a release of "liability for acts of negligence and negligence only."
The meaning that Ball seeks to draw from the phrase would be more likely if "or otherwise" followed the word negligence rather than the word releasees, resulting in a release from claims "whether caused by the negligence or otherwise of the releasees." Ball's contention draws support, however, from a decision of this court, Nimis v. St. Paul Turners, 521 N.W.2d 54 (Minn.App. 1994), that commented in dicta that the language "or otherwise," which was contained in a release, created an ambiguity in the scope because it arguably exculpated intentional injuries as well as negligence. Id. at 57-58.
The decision to admit evidence is within the discretion of the district court. Nimis v. St. Paul Turners, 521 N.W.2d 54, 58 (Minn.App. 1994) (citing In re Conservatorship of Torres, 357 N.W.2d 332, 341 (Minn. 1984)); see Jenson v. Touche Ross Co., 335 N.W.2d 720, 725 (Minn.
Consequently, the proper construction of the noncompete agreement is irrelevant because there is no longer any contract to construe. In Nimis v. St. Paul Turners, 521 N.W.2d 54 (Minn.App. 1994), this court addressed a similar issue. In that case, the issue was whether a waiver contract that the plaintiff signed in conjunction with a health club membership expired when the membership agreement expired, or whether the waiver was still in effect a year later when the plaintiff rejoined the club.
Moreover, the Splatball release specifically excludes damage "which is the result of gross negligence and/or wanton misconduct." This language is also the basis for distinguishing Nimis v. St.Paul Turners , 521 N.W.2d 54, 58 (Minn.App. 1994) in which a release without such an exclusion but including the phrase "or otherwise" was found ambiguous. In applying the second part of the Schlobohm test, the Malecha court rejected the argument that because skydiving is regulated it is a public or essential service and held that "parachute jumping is not an activity of great importance to the public and it is not a practical necessity to anyone."