United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN R. CLARK, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Top Gun Shooting
Sports, LLC's Motion for Summary Judgment .
Plaintiffs oppose the Motion. For the reasons set forth
below, the Court DENIES the Motion.
allege that on or about June 1, 2018, Plaintiff Marie
Hanrahan-Fox patronized the shooting range operated by
Defendant Top Gun Shooting Sports, LLC in Arnold, Missouri.
Doc. 29, ¶ 1. Plaintiffs allege that Top Gun provided
Ms. Hanrahan-Fox with inadequate hearing protection, and that
Ms. Hanrahan-Fox's subsequent use of Top Gun's
shooting range exposed her to dangerously loud noise levels
of gunfire. Id. at ¶¶ 9-10, 19. Plaintiffs
allege that Ms. Hanrahan-Fox suffered irreversible hearing
loss as a direct result of this exposure and is now legally
deaf. Id. at ¶¶ 20-22. Ms. Hanrahan-Fox
brings claims against Top Gun for negligence and failure to
warn, seeking damages in excess of $75, 000. Id. at
Counts I and II. Ms.
husband, Plaintiff William Fox, brings a claim for loss of
consortium and also seeks damages in excess of $75, 000.
Id. at Count III.
filed the present Motion for Summary Judgment, Doc. 51, on
September 25, 2019. As its sole basis for summary judgment,
Top Gun asserts that Ms. Hanrahan-Fox waived her claims
against Top Gun by signing a valid and enforceable liability
release. Doc. 51, pg. 3-5.
judgment is proper if the evidence, viewed in the light most
favorable to the nonmoving party, demonstrates no genuine
issue of material fact exists and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c);
Cordry v. Vanderbilt Mortg. & Fin., Inc., 445
F.3d 1106, 1109 (8th Cir. 2006) (quoting Bockelman v. MCI
Worldcom, Inc., 403 F.3d 528, 531 (8th Cir. 2005)). The
proponent of a motion for summary judgment “bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of
‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any,' which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting Fed.R.Civ.P. 56(c)). The proponent need not,
however, negate the opponent's claims or defenses.
Id. at 324- 25.
response to the proponent's showing, the opponent's
burden is to “come forward with ‘specific facts
showing that there is a genuine issue for trial.'”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). A
“genuine” dispute of material fact is more than
“some metaphysical doubt as to the material
facts.” Id. at 586. “[T]here is no issue
for trial unless there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). “If the evidence is merely
colorable...or is not significantly probative...summary
judgment may be granted.” Id. at 249-50
passing on a motion for summary judgment, the Court must view
the facts in the light most favorable to the nonmoving party,
and draw all justifiable inferences in its favor.
Id. at 255. The Court's function is not to weigh
the evidence, but to determine whether a genuine issue for
trial exists. Id. at 249.
argues that the Court should enter summary judgment in its
favor because Ms. Hanrahan-Fox signed a liability release
prior to entering Top Gun's shooting range. Doc. 51, pg.
3. Top Gun represents the following facts as uncontroverted
on the record: Top Gun requires all patrons entering the
shooting range to sign a “Release and Hold Harmless
Agreement.” Top Gun does not admit any patron to the
range unless the patron first signs the Agreement, and Top
Gun would not have allowed Ms. Hanrahan-Fox to enter the
shooting range unless she had signed the Agreement. Doc. 53,
¶ 5. The Agreement in question provides as follows:
RELEASE AND HOLD HARMLESS AGREEMENT
In consideration for using the facilities of Top Gun
Shooting Sports, LLC, the undersigned Participant
HEREBY AGREES TO WAIVE, RELEASE, AND HOLD
HARMLESSTop Gun Shooting Sports, LLC from
any and all claims for damages for death, personal injury, or
property damage which they may have or which they may accrue
as a result of participation in any activity and event