author: Justice RICE

text:
    David COOPER and Michael Cooper, Petitioners, v. The ASPEN SKIING COMPANY; The Aspen Valley Ski Club; John McBride, Jr.; and the United States Ski Association, Respondents.
    No. 008SC885.
    Supreme Court of Colorado, En Bane.
    June 24, 2002.

      Freeman & Freeman, Martin H. Freeman, Klein-Zimet, P.C., Herbert S. Klein, Michele Nelson Bass, Aspen, Colorado, Attorneys for Petitioners.
    Higgins, Hopkins, McLain & Roswell, LLC, Stephen Hopkins, David McLain, Geoffrey N. Blue, Lakewood, Colorado, Attorneys for Respondents The Aspen Skiing Company; The Aspen Valley Ski Club; and John McBride, Jr.
    Rietz and Smith, LLC, Peter W. Rietz, Jere K. Smith, Dillon, Colorado, Attorneys for Respondent United States Ski Association.
    Chalat Law Offices, P.C., James H. Chalat, Denver, Colorado, Attorney for Amicus Curiae Colorado Trial Lawyers Association.
   Justice RICE

delivered the Opinion of the Court.

In 1995, petitioner David Cooper, then seventeen, suffered injuries, including blindness, when he lost control and crashed into a tree while training on a ski race course. David 'and his parents filed suit against the Aspen Valley Ski Club Inc. and David's coach, John. McBride, Jr., (Defendants) alleging, among other claims, negligence. The trial court determined as a matter of law pursuant to C.R.C.P. 56(h) that a release signed by both David and his mother, Diane Cooper, before the injury occurred "should be enforced and act as a bar to claims of negligence against these defendants." (R. at v. VIII, p.1984.) In addition, the trial court determined as a matter of law that "defendants' motion for determination of law should be denied in part in so far as the motion seeks to enforce the indemnity provisions of the agreement against plaintiff, Diane Cooper." (Id.) David appealed the trial court's order, and in Cooper v. Aspen Ski Ass'n, 32 P.8d 502 (Colo. App.2000), the court of appeals affirmed, holding that the release signed by David's mother was enforceable against David, even though he was a minor both when the release was signed and when the accident occurred.

We granted certiorari to determine whether Colorado's public policy allows a parent to validate exculpatory provisions on behalf of his minor child Specifically, we must resolve whether a parent may release the claims of a minor child for future injuries and whether a parent may enter into an indemnification agreement that shifts the source of compensation for a minor's claim from a tortfeasor to the parent. We hold that the public policy of Colorado affords minors significant protections that preclude a parent or guardian from releasing a minor's own prospective claim for negligence We also hold that an indemnity provision that shifts the source of compensation for negligence from the tortfeasor to the minor's parent or guardian creates an unacceptable conflict of interest between a parent/guardian and a minor and violates Colorado's public policy to protect minors. Accordingly, we reverse the court of appeals' judgment and remand the case to that court with instructions to return the case to the trial court for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

In 1995, seventeen-year-old petitioner David Cooper had been a member of the Aspen Valley Ski Club, Inc. (the Ski Club), for about nine years and was actively involved in competitive ski racing. At the beginning of the 1995-1996 ski season, David and his mother signed a form titled "Aspen Valley Ski Club, Inc. Acknowledgment and Assumption of Risk and Release" (the Release). '

The Release relieved the Ski Club from:

any liability, whether known or unknown, even though that liability may arise out of negligence or carelessness on the part of persons or entities mentioned above. The undersigned Participant and Parent or Guardian agree to accept all responsibility for the risks, conditions and hazards which may occur whether or not they are now known.

The Release further stated:

... the undersigned Participant and Parent or Guardiaa HEREBY AGREE TO WAIVE, RELEASE, DISCHARGE, INDEMNIFY AND HOLD HARMLESS any and all claims for damages for death, personal injury or property damage which they may have or which may hereafter accrue as a result of any participation in an Aspen Valley Ski Club, Inc. program and related activities and events.... The undersigned Participant and Parent or Guardian further agree to forever HOLD HARMLESS and IDEMNIFY all persons and entities identified above, generally and specifically, from any and all liability for death, personal injury or property damage resulting in any way from participating in the activities and events described above. By signing this Acknowledgement and Assumption of Risk and Release as the Parent or Guardian, I am consenting to the participant's participation: in the Aspen Valley Ski Club, Inc. programs and related activities and acknowledge that I understand that all risk, whether known or unknown, is expressly assumed by me and all claims, whether known -or unknown, are expressly waived in advance. ,

On December 30, 1995, David was training for a competitive, high speed alpine race. The course had been set by David's coach, defendant MeBride. During a training run, David fell and collided with a tree, sustaining severe injuries, including the loss of vision in both eyes.

The trial court ruled that Diane Cooper's signature on the release bound her son, David, to the terms of the release and barred his claims against the Ski Club and McBride. The court of appeals affirmed, holding that based on a parent's fundamental liberty interest in the care, custody, and control of her child, David's mother had the right to release David's claims for possible future injuries. Cooper, 32 P.3d at 507. 'We granted certio-rari and now reverse. '

II. STANDARD OF REVIEW

Appellate courts review a trial court's order granting or denying a motion for summary judgment de novo. Pierson v. Black Canyon Aggregates, No. O1SC161, 2002 Colo. LEXIS 424, at "12, - P.3d --, 2002 WL 1009283 (Colo. May 20, 2002). This is because such judgments "are rulings of law in the sense that they may not rest on the resolution of disputed facts." Id. (quoting Feiger, Collison & Killmer v. Jones, 926 P.2d 1244, 1250 (Colo.1996)). Therefore, we decide today's issue de novo.

III. ANALYSIS

A. Validity of the Release

We must first determine whether Colorado's public policy allows parents to contractually release their child's future claims for injury caused by negligence.

While it is a well-settled principle that "[a] minor during his minority, and acting timely on reaching his majority, may disaffirm any contract that he may have entered into during his minority," Nicholas v. People, 973 P.2d 12183, 1219 (Colo.1999); Doenges-Long Motors v. Gillen, 138 Colo. 31, 35-86, 328 P.2d 1077, 1080 (1958), we have never specifically addressed whether a parent or guardian may release a child's cause of action on his behalf or whether Colorado's public policy allows a parent or guardian to serve as indemnitor for his minor child's claims against an indemnitee. As such, the issue in this case presents a significant question regarding the junction of contract law, tort law, and public policy.

Here, we agree with the Washington Supreme Court that "there are instances where public policy reasons for preserving an obligation of care owed by one person to another outweigh our traditional regard for freedom of contract." Scott v. Pac. W. Mountain Resort, 119 Wash.2d 484, 834 P.2d 6, 11, 12 (1992) (holding that "to the extent a parent's release of a third party's liability for negligence purports to bar a child's own cause of action, it violates public policy and is unenforceable"). Accordingly, we hold that Colorado's public policy affords minors significant protections which preclude parents or guardians from releasing a minor's own prospective claim for negligence. We base our holding on our understanding of Colorado's public policy to protect children as reflected by legislation protecting minors as well as decisions from other jurisdictions, which we find persuasive. However, we note that this question is a matter of legislative prerogative, and, of course, the General Assembly could choose to address it differently.

1. Colorado's Public Policy

The General Assembly has demonstrated an on-going commitment to afford minors significant safeguards from harm by passing numerous statutes designed to protect minor children. Most significant of these for purposes of this case are the protections accorded minors in Colorado in the post-injury claim context. Colorado laws do not allow a parent the unilateral right to foreclose a child's existing cause of action to recover for torts committed against him. Rather, the General Assembly has granted minors a number of protections to safeguard their post-injury rights of recovery. Indeed, the Colorado Probate Code provides significant procedural protections for minors in the post-injury claim context. This legislation cere-ates mechanisms for the appointment of a conservator to protect a minor's settlement rights. § 15-14-403, 5 C.R.S. (2001); § 15-14-425(2)(t), 5 C.RS. (2001). It also provides minors important protections by creating means by which the court may ratify the settlement of a minor's claims. § 15-14-412(1)(b), 5 C.R.S. (2001). Importantly, a parent may not act as a minor's conservator as a matter of right, but only when appointed by the court. § 15-14-418, 5 C.R.S. (2001).

Thus, we agree with the Utah Supreme Court and the Washington Supreme Court-both of which recently analyzed the same issue presented here-that "since a parent generally may not release a child's cause of action after injury, it makes little, if any, sense to conclude a parent has the authority to release a child's cause of action prior to an injury." Scott, 834 P.2d at 11-12; accord Howkins v. Peart, 37 P.8d 1062, 1066 (Utah 2001).

Arguably, the differences between the two types of releases may weaken any comparison between them. See Angeline Purdy, Scott v. Pacific West Mountain Resort: Erroneously Invalidating Parental Releases of a Minor's Future Claim, 68 Wash. L.Rev. 457, 472 (1998)(arguing that while existing tort claims are vulnerable to parental mismanagement because of the financial pressure to accept inadequate settlements, outright parental dishonesty, and the existence of indemnity provisions in settlements, parents who release future claims do not have the same financial motivation to sign a release because-by signing the release before injury-the parent will ultimately be required to pay for medical care).

We do not find these distinctions meaningful or persuasive, however. It may be true that parents in the pre-injury setting have less financial motivation to sign a release than a parent in the post-injury setting who needs money to caré for an injured child. Nonetheless, the protections accorded minors in the post-injury setting iMlustrate Colorado's overarching policy to protect minors, regardless of parental motivations, against actions by parents that effectively foreclose a minor's rights of recovery. Thus, while a parent's decision to sign a pre-injury release on his child's behalf may not be in "deliberate derogation of his child's best interests," Purdy, supra, at 474, the effect of a release on the child in either the pre-injury context or the post-injury one is the same. If parents are unwilling or unable to care for an injured child, he may be left with "no recourse against a negligent party to acquire resources needed for care and this is true regardless of when relinquishment of the child's rights might occur." Scott, 834 P.2d at 12. In addition, while pre-injury releases might be less vulnerable to mismanagement, children still must be protected against parental actions-perhaps rash and imprudent ones-that foreclose all of the minor's potential claims for injuries caused by another's negligence.

Thus, given our historical regard for the special needs of minors and the fact that both a pre-injury release and a post-injury one work to deprive a child of rights of recovery, the fact that a parent is not afforded unilateral power to foreclose a minor's rights in the post-injury context supports our holding that he may not do so in the pre-injury setting either.

Moreover, our case law firmly supports the proposition that Colorado's public policy works to protect minors from parental actions that foreclose a minor's rights to recovery. See, eg., Elgin v. Bartlett, 994 P.2d 411, 414-15 (Colo.1999) (holding that the statute of limitations applicable to a minor's cause of action for medical negligence does not begin to run until the minor reaches the age of eighteen, unless the minor has a court-appointed legal representative, because the language of the applicable statutory sections reflects the General Assembly's policy choice to operate literally for the protection of the minor by not allowing parents to remove or waive a minor child's legal disability by instituting a next friends suit, and thereby refusing to penalize the minor for the parents' action); Rojhani v. Arenson, 929 P.2d 23, 26 (Colo.App.1996) (concluding that parents' failure as next friends to timely file notice of minor's injury did not preclude the minor's suit because the minor was not capable of appreciating his injury and because no guardian or personal representative was appointed); Cintron v. City of Colo. Springs, 886 P.2d 291, 295 (Colo. (concluding that although a parent may voluntarily undertake to aid the assertion of a child's claim by acting as a next friend, a minor may not be charged with the parents' failure, acting as next friends, to discover the minor's injury or to provide notice thereof on the parents behalf); cf. eg., In re Miller, 790 P.2d 890, 892-93 (Colo.App.1990) (reasoning that "[the law and policy of this state is that the needs of the children are of paramount importance and cannot be altered by the parties" and holding that an agreement between parents regarding child support is not enough, in and of itself, to allow deviation from the child support guidelines and that a trial court must presume, unless rebutted, that child support obligations must be set in the amount specified in the statutory schedule).

[7-9] To allow a parent or guardian to execute exculpatory provisions on his minor child's behalf would render meaningless for all practical purposes the special protections historically accorded minors. In the tort context especially, a minor should be afforded protection not only from his own improvident decision to release his possible prospective claims for injury based on another's negligence, but also from unwise decisions made on his behalf by parents who are routinely asked to release their child's claims for liability. In Colorado, it has long been the rule that courts owe a duty to "exercise a watchful and protecting care over [a minor's] interests, and not permit his rights to be waived, prejudiced or surrendered either by his own acts, or by the admissions or pleadings of those who act for him." Seaton v. Tohill, 11 Colo.App. 211, 216, 58 P. 170, 172 (1898). Nearly one hundred years later we confirmed this steadfast principle: "Courts are charged with the responsibility to take special care in protecting the rights of minor children." Abrams v. Connolly, 781 P.2d 651, 658 (Colo.1989). Thus, a minor is accorded special protection, and to allow a parent to release a child's possible future claims for injury caused by negligence may as a practical matter leave the minor in an unacceptably precarious position with no recourse, no parental support, and no method to support himself or care for his injury.

2. Other Jurisdictions

Our holding that parents may not release a minor's prospective claim for negligence comports with the vast majority of courts that have decided the issue. In fact, the highest courts of two of our sister states, Utah and Washington, recently analyzed the precise issue facing us today, and both concluded that a parent may not execute a release on behalf of his minor child for prospective claims sounding in negligence.

In Hawkins v. Peart, 37 P.8d 1062 (Utah 2001), eleven-year-old Jessica Hawkins was injured when she was thrown from a horse during a trail ride with her family. Id. at 1063. Jessica's mother had signed a release containing a waiver of liability and an indemnity provision. Id. Relying on a public policy exception specifically relating to releases of a minor's claims and reasoning that Utah's statutes and rules favored the protection of minors with respect to contractual obligations, the Utah Supreme Court held that a parent may not release a minor's prospective claim for negligence. Id. at 1065-66.

In addition, the facts of Scott v. Pacific West Mountain Resort, 119 Wash.2d 484, 834 P.2d 6 (1992), are remarkably similar to those presented in this case. < In Scot, twelve-year-old Justin Scott, a student of a ski school, sustained severe head injuries while skiing a slalom race course that had been set by the ski school's owner. Scoff, 834..P.2d at 8. Prior to the injury, Justin's mother had signed a ski school application that included an exculpatory clause relieving the school from any liability for its own negligence. Id. at 8-9. The Washington. Supreme Court reasoned that "since a parent generally may not release a child's cause of action after injury, it makes little, if any, sense to conclude a parent has the authority to release a.child's cause of action prior to an injury." Id. at 11-12. Accordingly, the court held, "to the extent a parent's release of a third party's liability for negligence purports to bar a child's own cause of action, it violates public policy and is unenforceable." Id. at 12.

Finally, other courts across the nation that have considered the issue have determined that a parent may not release a minor's prospective cause of action. See, eg., Apicel-la v. Valley Forge Military Acad. & Junior Coll., 630 F.Supp. 20, 24 (E.D.Pa.1985) ("Under Pennsylvania law, parents do not possess the authority to release the claims or potential claims of a minor child merely because of the parental relationship."); Fedor v. Mau-wehu Council, Boy Scouts of Am., 21 Conn. Supp. 38, 148 A2d 466, 468 (1958) (ruling that "it is doubtful that either the mother or father of this minor plaintiff had the power or authority to waive his rights against the defendant arising out of acts of negligence on the part of the defendant" and sustaining the demurrer of the plaintiff to the special defense that the waiver of all claims for damages: absolved the defendant of lability); Meyer v. Naperville Manner, Inc., 262 Tl. App.8d 141, 199 IIl. Dec. 572, 684 N.E.2d 411, 415 (1994) ("Since the parent's waiver of liability was not authorized by any statute or judicial approval, it had no effect to bar the minor child's (future) cause of action...."); Doyle v. Bowdoin Coll., 403 A.2d 1206, 1208 n. 8 (Me.1979) (stating in dicta that "a parent, or guardian, cannot release the child's, or ward's, cause of action"); Fitzgerald v. Newark Morning Ledger Co., 111 N.J.Super.

104, 267 A.2d 557, 559 (Law Div.1970) (concluding that release and indemnity provision signed by father on behalf of his minor son was void as against public policy); Alexander v. Kendall Cent. Sch. Dist., 221 A.D.2d 898, 634 N.Y.S.2d 318, 319 (1995) (stating in dicta that "a minor is not bound by a release executed by his parent"); Childress v. Madison County, 777 S.W.2d 1, 7 (Tenn.Ct.App.1989) (holding that mother could not execute a valid release or exculpatory clause on behalf of her minor son); Munoz v. II Jaz Inc., 863 SW.2d 207, 209-10 (Tex.Ct.App.1993) ("We hold that section 12.04(7) of the Family Code, which empowers a parent to make legal decisions concerning their child, does not give parents the power to waive a child's cause of action for personal injuries. Such an interpretation of the statute would be against the public policy to protect minor children."); see also Int'l Union, UAW v. Johnson Controls, Inc., 499 U.S. 187, 218, 111 S.Ct. 1196, 113 LEd2d 158 (1991) (White, J., concurring) (stating the general rule that parents cannot waive causes of action on behalf of their children). But see Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.38d 1559, 274 Cal.Rptr. 647, 649-50 (1990) (holding that parent may contract for child and therefore release signed on child's behalf by parent is valid); cf. Zivich v. Mentor "Space?" Club, Inc., 82 Ohio St.3d 867, 696 N.E.2d 201, 207 (1998) (holding that "parents have the authority to bind their minor children to exculpatory agreements in favor of volunteers and sponsors of nonprofit sports activities where the cause of action sounds in negligence"); Mohney v. USA Hockey, Inc., 77 F.Supp.2d 859 (N.D.Ohio 1999) (applying Zivick holding and ruling that "Injothing in the Zivich opinion indicates that its holding should be limited to nonprofit sports organizations that are local in scope"), offd in part, rev'd in part on other grounds, Mohney v. USA Hockey, Inc., 5 Fed.Appx. 450 (6th Cir.2001).

Accordingly, in this case, Diane Cooper's execution of the release did not act as a release of the claims of her minor son David.

B. PARENTAL INDEMNITY PROVISIONS -

Finally, we consider the validity of parental indemnity provisions. As a practical matter, release and indemnity provisions in contracts signed by parents or guardians on behalf of their minor children go hand-in-hand: having invalidated release provisions, it would be contradictory to then effectively undereut a minor's rights to sue by allowing indemnity clauses that make such suits for all-realistic purposes unlikely.

Thus, we agree with the reasoning of those courts invalidating parental indemnity provisions that a minor child would be unlikely to pursue claims if his parent or guardian served as the ultimate source of compensation for the negligent party's torts, and that-if the child did bring a cause of action-family discord would likely result. See Hawkins, 37 P.8d at 1067 (reasoning that "an indemnification from negligence that specifically makes a parent the ultimate source of compensation would likely result in inadequate compensation for the minor or family discord" and holding that parental indemnification provisions are invalid); see also, eg., Valdimer v. Mount Vernon Hebrew Camps, Inc., 9 N.Y2d 21, 210 N.Y.S2d 520, 172 N.E.2d 283, 285 (1961) (concluding that post-injury parental indemnification agreements thwart state's protective policy by discouraging infant to bring claim or creating family disharmony if infant elects to press his claim); Ohio Cas. Ins. Co. v. Mallison, 223 Or. 406, 354 P.2d 800, 802-08 (1960) (in post-injury parental indemnification setting, reasoning that a child would be unlikely to pursue claims if agreement required parent to indemnify defendant).

Moreover, the effect of a parental indemnity agreement to assure that a negligent party will not be held financially responsible for that party's torts committed against a minor undermines a parent's duty to protect the best interests of the child. Thus, we also agree with the Utah Supreme Court that parental indemnity provisions "can only serve to undermine the parent's fundamental obligations to the child." Hawkins, 387 P.3d at 1067; see also, eg., Fitzgerald, 267 A.2d at 559 (concluding that release and indemnity provision signed by father on behalf of his minor son was void as against public policy because the agreement may have conflicted with the father's duty to his son because the father may prevent infant from bringing suit since the father would ultimately be responsible under indemnity provision); Childress, 777 S.W.2d at 7 (holding that "{Indemnification agreements executed by a parent or guardian in favor of tortfeasors, actual or potential, committing torts against an infant or incompetent, are invalid as they place the interests of the child or incompetent against those of the parent or guardian").

Therefore, we also hold that parental indemnity provisions violate Colorado's public policy to protect minors and create an unacceptable conflict of interest between a minor and his parent or guardian.

~ TIV. © CONCLUSION

In summary, we hold that Colorado's pub-lie policy disallows a parent or guardian to execute exculpatory provisions on behalf of his minor child for a prospective claim based on negligence. Specifically, we hold that a parent or guardian may not release a minor's prospective claim for negligence and may not indemnify a tortfeasor for negligence committed against his minor child. Therefore, we reverse the court of appeals' judgment with instructions to that court to return the case to the trial court for further proceedings consistent with this opinion. ~

      . David's mother, Diane Cooper, did not contest the trial court's order that the release barred her own claims against Defendants.

      . On cross-appeal in Cooper, the Defendants argued that the trial court erred in determining that the indemnity provision in the release signed by David's mother was unenforceable. Cooper, 32 P.3d at 511. The court of appeals determined that the cross-appeal was moot, however, because it held that the release was enforceable against David, and 'this conclusion necessarily precluded a finding of liability against the Aspen Valley Ski Club. Id.

      . We granted certiorari to consider: "Whether the public policy of Colorado allows a parent to release the claims of a minor child for possible future injuries from a recreational activity." >

      . However, section 13-21-116(2.5)(a), 5 C.R.S. (2001) protects " 'persons,' be they individuals or entities who perform volunteer services" for designated types of organizations from liability. Concerned Parents of Pueblo, Inc. v. Gilmore, 47 P.3d 311, 313-14 (Colo.2002). Section 13-21-116(2.5)(a) does not, however, insulate the organization itself from liability. Concerned Parents, 47 P.3d at 312. Our holding does not affect the applicability of section 13-21-116(2.5) or our decision in Concerned Parents; rather section 13-21-116(2.5)(a) would preclude liability against volunteer leaders, volunteer assistants, volunteer teachers, volunteer coaches, and volunteer trainers, with certain statutory limitations. § 13-21-116(2.5)(a).
      We note, in addition, that risks other than a party's negligence may be present in a recreational activity. For example, a sport may present inherent dangers that can not be eliminated by the exercise of reasonable care. We do not consider this issue; nor do we rule on the assumption of risk and inherent risk provisions in legislative acts such as the Ski Safety Act of 1979.
      Finally, we emphasize that our holding applies only to parental releases of liability for negligence and not to, for example, parental consent forms for medical services such as surgery and the like.

      . In Jones v. Dressel, 623 P.2d 370 (Colo.1981), this court established a four-factor test to determine the validity of an exculpatory agreement. Id. at 376. However, because we rely on a public policy exception specifically relating to parental/guardian releases of a minor's claims to invalidate the exculpatory agreement, we need not consider the Jones factors to determine whether the exculpatory agreement in this case would have been valid under Jones.

      . In Jones, 623 P.2d 370, we noted that "the approval by a parent does not necessarily validate an infant child's contract." Id. at 372 n. 1. However, we determined that Jones ratified the contract by accepting the benefits of it when he used the defendant's recreational skydiving facilities after reaching the age of majority, Jones, 623 P.2d at 374, and accordingly did not decide the issue we analyze today.

      . - While we traditionally recognize a "strong policy of freedom of contract," Allstate Ins. Co. v. Avis Rent-A-Car System, Inc., 947 P.2d 341, 346 (Colo.1997), we also recognize that "exculpatory agreements have long been disfavored." B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998). Indeed, "(exculpatory clauses] stand at the crossroads of two competing principles: freedom of contract and responsibility for damages caused by one's own negligent acts." Id.

      . See generally, e.g., § 13-22-101, 5 C.R.S. (2001) (eighteen is minimum age of competence for people to independently enter into contracts, manage estates, and sue and be sued); § 16-11-201(4)(a)(II), 6 C.R.S. (2001) (possibility for increased criminal penalties for certain crimes committed against a child); § 17-22.5-405(5)(b) (same); § 17-27.9-103(1)(a) (same); § 18-3-412, 6 C.R.S. (2001) (same); § § 26-6-101 to 307, 8 C.R.S. (2001) (comprehensive regulations in the Child Care Licensing Act); § 42-4-236, 11 C.R.S. (2001) (unless exempted under subsection (3), mandatory use of child restraint systems in motor vehicles}.

      . See generally 67A CJ.S. Parent and Child § 114, at 469 (1978) ("In the absence of statutory or judicial authorization, the parent has no authority, merely because of the parental relation, to waive, release, or compromise claims by or against the child. This rule applies to a waiver, settlement, or release of the child's right of action for a personal injury or other tort.").

      . For example, under section 15-14-403(1), 5 C.R.S. (2001) of the Colorado Probate Code, the "person to be protected" (in this case the minor), § 15-14-403(1)(a), 5 C.R.S. (2001) or "an individual interested in the estate, affairs, or welfare of the person to be protected,": § 15-14-403(1)(b), 5 C.R.S. (2001), "may petition for the appointment of a conservator or for any other appropriate protective order." § 15-14-403(1). Unless qualified or limited by the court, § 15-14-425(1), 5 C.R.S. (2001), a conservator may "[play or contest any claim, settle a claim by or against the estate of the protected person by compromise, arbitration, or otherwise." § 15-14-425(2)(t), 5 C.R.S. (2001); Furthermore, "Hlf a basis is established for a protective order with respect to an individual, the court, without appointing a conservator, may," § 15-14-412(1), 5 C.R.S. (2001), "[aluthorize, direct, or ratify any other contract, trust, will or transaction relating to the protected person's property and business affairs, including a settlement of a claim, upon determining that it is in the best interest of the protected person." § 15-14-412(1)(b). Moreover, a parent may only act as a minor's conservator when appointed by the court. § 15-14-413, 5 CRS. (2001) (listing parents sixth in prioritized list of eligibility for court appointment as conservator.) |.,

      . The court of appeals based its holding that a parent may execute a pre-injury release on behalf of his minor child on parents' fundamental right under the Due Process Clause to make decisions "concerning the care, custody, and control of their children." Cooper, 32 P.3d at 507 (citing Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 LEd.2d 49 (2000). While we certainly agree that parents have a liberty interest in the "care, custody and control of their children," Troxel v. Granville, 530 U.S. at 65, 120 S.Ct. 2054, we do not believe that right encompasses a parent's decision to disclaim a minor's possible future recovery for injuries caused by negligence by signing a release on the minor's behalf. A' parental release of liability on behalf of his child is not a decision that implicates such fundamental parental rights as the right to "establish a home and bring up children," Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), and the right "to direct the upbringing and education of children under their control," Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). Moreover, it does not implicate a parent's "traditional interest ... with respect to the religious upbringing of their children," Wisconsin v. Yoder, 406 U.S. 205, 214, 92 S.Ct. 1526, 32 LEd.2d 15 (1972), or such medical decisions as a parent's right to "retain a substantial ... role" in the decision to voluntary commit his child to a mental institution (with the caveat that the child's rights and the physician's independent judgment also plays a role), Parham v. J.R., 442 U.S. 584, 604, 99 'S.Ct' 2493, 61 LEd.2d 101 (1979); rather a parental release on behalf of a child effectively eliminates a child's legal right to sue an allegedly negligent party for torts committed against him. It is, thus, not of the same character and quality ' as those rights recognized as implicating a parents' fundamental liberty interest in the "care, custody, and control" of their children.
      Furthermore, even assuming 'arguendo, that a parental release on behalf of a minor child implicates a parent's fundamental right to the care, custody, and control of his child, this right is not absolute. Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944); People v. Shepard, 983 P.2d 1, 4 (Colo.1999). Indeed, "[aleting to guard the general interest in youth's well being, the state as parens patriae may restrict the parent's control by requiring school attendance, regulating or prohibiting the child's labor and in many other ways." Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944) (footnotes omitted). In fact, ~'"in order to protect a child's well-being, the state may restrict parental control." Shepard, 983 P.2d at 4.

      . The Utah court's analysis of the parental indemnity provision is discussed in the next section of this opinion.

      . However, the Hoke court relied on Doyle v. Giuliucci, 62 Cal.2d 606, 43 Cal.Rptr. 697, 401 P.2d 1 (1965), which only allowed a parent to bind a child to the arbitration forum. Doyle, 43 Cal.Rptr. 697, 401 P.2d at 2-3.

      . Although Ohio's General Assembly later enacted legislation affording "qualified immunity to unpaid athletic coaches and sponsors' of athletic events," Zivich, 696 N.E.2d at 205, at the time the Zivich case arose, Ohio did not have legislation providing volunteers any immunity from liability. Subsequently, the Ohio legislature repealed these laws. See Ohio Rev.Code Ann. § 2305.381 (Anderson 2002) (repealed 2001); Ohio Rev.Code Ann. § 2305.382 (Anderson 2002) (repealed 2001). -

      . Though this issue was not specifically encompassed within the question on which we granted certiorari, given our holding that Diane Cooper could not contractually release David's future claims for injury caused by negligence, and. to assist the court on remand, as well as to conserve scarce judicial resources, we address the validity of parental indemnification provisions.


source: Caselaw Access Project

author:
HODGES, J.
      SUMMERS, J.,

license: Public Domain

text:
    2002 OK 29
    PUBLIC SERVICE COMPANY OF OKLAHOMA, an Oklahoma Corporation, Plaintiff/Appellee, v. NORTHEASTERN OKLAHOMA ELECTRIC COOPERATIVE, INC., an Oklahoma Corporation, Defendant/Appellant.
    No. 95,869.
    Supreme Court of Oklahoma.
    April 24, 2002.

      Leonard M. Logan, IV, Todd E. Kolezun, Logan & Lowry, LLP, Vinita, OK, for the appellant.
    Jay M. Galt, Marjorie McCullough, White Coffey, Galt & Fite, Oklahoma City, OK, Stratton Taylor, Mark Ramsey, Taylor, Bur-rage, Foster, Mallett, Downs & Ramsey, Claremore, OK, for the appellee.
    Diane Pedicord, Sue Ann Nicely, Oklahoma Municipal League, Oklahoma City, OK, for the amicus curiae, Oklahoma Municipal League, Inc.
   HODGES, J.

I, ISSUE

1 The issue before this Court is whether title 11, section 21-112 of the Oklahoma Statutes cures defects in the publication procedures after an ordinance has been duly passed by a town. We hold the section 21-112's conclusive evidence provision cures the Town of Chelsea's failure to comply with title 11, section 14-106's publication requirements.

II. FACTS

2 The facts are undisputed. Northeastern Oklahoma Electric Cooperative, Inc. (NOEC) is a rural electric cooperative which is authorized to operate in rural areas. Okla. Stat. tit. 18, § 487.2(d) (2001). Public Service Company of Oklahoma (PSO) owns a franchise for the purpose of providing electrical service with the Town of Chelsea, Oklahoma.

T3 The sole owner of property in an area known as the Chelsea Industrial Park (Park) petitioned the Town of Chelsea to annex the area. See id. at 21-105. Notice of the presentation of the petition to the Town of Chelsea's board of trustees was given for two consecutive weeks pursuant to title 11, seetion 21-105. In 1997, the board of trustees adopted an ordinance annexing the area. The ordinance was not published as a legal notice after its adoption although the local newspaper reported on the trustee's meeting, including the ordinance. On August 20, 1997, the ordinance was recorded in the Rogers County Clerk's office pursuant to title 11, section 21-112.

1 4 In 2000, NOEC began furnishing electric service within the Park. PSO filed a suit for injunctive relief, asserting by virtue of the ordinance's passage, its filing with the county clerk, and its franchise, that it has the exclusive right to provide electric service within the Park. NOEC contended that the ordinance was not published and never took effect, the Chelsea Industrial Park is not a part of the Town of Chelsea, and therefore, NOEC, not PSO, has the right to provide electric service to the area.

15 Initially, the district court agreed with NOEC. However, after PSO filed a motion to reconsider, the district court enjoined NOEC from providing electric service within the Park. NOEC appealed. This Court retained the appeal for disposition.

III. STANDING

16 PSO asserts that NOEC does not have standing to contest the effectiveness of the annexation ordinance. Generally, the corporate limits of a municipality cannot be collaterally attacked except by the state acting through its attorney general. Biggerstaff v. City of Altus, 1926 OK 115, ¶ 17, 248 P. 751; see Macy v. Oklahoma City Sch. Dist. No. 89, 1998 OK 58, ¶ 15, 961 P.2d 804, 807. A challenging party has standing to challenge an annexation ordinance if it has a personal stake in the outcome and a personal or economic injury. Oklahoma Gas and Elec. Co. v. Oklahoma Elec. Coop., Inc., 19783 OK 158, ¶ 12, 517 P.2d 1127, 1132. Because NOEC has a personal stake in the outcome and a potential economic loss, it has standing to challenge the annexation ordinance.

IV. EFFECTIVE DATE OF ORDINANCE

17 Both parties agree that NOEC's right to provide electric service to the Park hinges on whether the ordinance passed by the board of trustees became effective before NOEC began service within the Park NOEC has the authority to provide electric service to rural areas and to areas it served before annexation by a municipality. Oka. Stat. tit. 18, 487.2 (2001); Oklahoma Gas and Elec. Co., 1973 OK 158, 517 P.2d at 1127. Thus, NOEC has the right to provide electric service to customers within the Park if it was doing so before the annexation's effective date. Otherwise, PSO has the exclusive right to provide electric service to customers within the Park.

T8 Title 11, section 14-103 provides for an emergency measure to go into effect upon its final passage unless the measure specifies a later date. Section 14-106 requires that a measure be published within fifteen days after its passage. Had the Town of Chelsea followed section 14-106, it is unquestioned that the annexation ordinance would have become effective when it was published. East Central Okla. Elee. Co-op., Inc. v. Oklahoma Gas & Elec. Co., 1973 OK 3, 505 P.2d 1324.

19 Pursuant to title 11, section 21-112, the mayor of a town must file an annexation ordinance in the county clerk's office, and the record in the county clerk's office is conclusive evidence of the annexation. The purpose of recording is to give notice to interested parties that an area has been annexed, the same purpose as publication. Burgess v. Independent Sch. Dist. No. 1, 1959 OK 37, ¶ 23, 336 P.2d 1077. The intended effect of section 21-112 is to immunize annexation ordinances from attacks based on procedural defects by making the recording in the county clerk's office conclusive evidence of the regularity of the proceedings. Okla. Stat. tit. 11, § 21-112 (2001); Welborn v. Whitney, 126 P.2d 263, 1942 OK 142.

110 Because section 21-112 was intended to remedy procedural defects in the annexation process, it is a curative statute. A curative statute is "one which, while marking out a course for the officers to pursue, at the same time declares that certain irregularities shall not vitiate any proceedings that shall be had under the statute." Welborn v. Whitney, 126 P.2d at 267; 2 Norman J. Singer, Statutes and Statutory Construction § 41:11 (6th ed.2001). The Legislature may make immaterial any procedural requirement which it could have omitted from the original legislation. Welborn, 126 P.2d at 267; Singer, Statutes at § 41:11. The power to enact curative statutes does not extend to remedying a lack of authority to act at all. Welborn, 126 P.2d at 267.

{11 Curative statutes have long been recognized by this Court as effectively curing non-jurisdictional procedural defects. Public Serv. Co. of Okla. v. Parkinson, 1948 OK 299, 198 Okla. 112, 141 P.2d 586; Welborn, 126 P.2d at 263. In Parkinson, a school annexation was attacked for failure to follow the statutory procedures for annexation. After the defective annexation, the Legislature passed a curative statute. This Court upheld the annexation based on the subsequently enacted curative statute. In Welborn, this Court recognized the effect of curative statutes when applied to the procedures leading up to the execution of a tax deed. Curative statutes applied to the defective exercise of already existing power are valid. Welborn, 126 P.2d at 266-67. However, a legislative body cannot validate the "the exercise of assumed power not existing at the time of its purported exercise." Id.

112 In the present case, the Board of Trustees had authority to annex the Park. It followed the statutory procedures necessary for the annexation. It is unchallenged that the Park was properly annexed. Only the publication after adoption of the ordinance was omitted. The Legislature did not have to require the publication of the ordinance after it was adopted by the Board of Trustees.

113 The Legislature had the authority to cure defects caused from the failure to publish the ordinance after its adoption through section 21-112. Because the defect in the publication was cured by section 21-112, the ordinance became effective when it was filed in office of the county clerk and before NOEC initiated service within the Chelsea Industrial Park. Thus, the trial court was correct in issuing an injunction against NOEC.

114 This conclusion is consistent with rules of statutory construction utilized to determine legislative intent. "Where two or more enactments are involved, the primary objective is to determine the latest expression of the legislative will." Grand River Dam Auth. v. State, 1982 OK 60, ¶ 24, 645 P.2d 1011, 1018. Under this rule, the last enactment will ordinarily prevail when there is an irreconcilable conflict between two statutes. Trask v. Johnson, 1969 OK 57, ¶ 6, 452 P.2d 575, 577. Section 14-106, requiring publication, was enacted in 1949 and first codified as section 579.2 of title 11. Because the conclusive evidence language of section 21-112 became effective in 1978, after section 14-106, section 21-112 controls.

In the same manner, the amendment to section 21-112 to include the conclusive evidence language was intentional and, in this case, significant. We will not deem the Legislature to have done a vain or useless act, Johnson v. City of Woodward, 2001 OK 85, ¶ 14, 38 P.8d 218, 224-25. To hold that section 21-112 did not cure the publication defect would be to leave the conclusive evidence language without meaning and useless.

116 PSO relies on East Central Okla. Elec. Co-op., Inc. v. Oklahoma Gas & Elec. Co., 1978 OK 3, 505 P.2d 1324. This case is not controlling because the conclusive evidence language did not become effective until 1978, after East Central was adopted. Thus, the conclusive evidence language was not at issue in Hast Central.

v. CONCLUSION

T17 Pursuant to title 11, section 21-112, recording the annexation ordinance in the Rogers' County Clerk's office cured the failure to follow section 14-106's publication requirements. The annexation was effective upon its recording in the Rogers' County Clerk's office. NOEC was not providing electric service to the Chelsea Industrial Park prior to the Park's annexation to the Town of Chelsea, and PSO had an exclusive franchise to provide electric service to the Chelsea Industrial Park. Therefore, the Rogers County District Court properly enjoined NOEC.

AFFIRMED.

] 18 HARGRAVE, C.J., WATT, V.C.J., HODGES, LAVENDER, OPALA, WINCHESTER, JJ., Concur.

1 19 KAUGER, SUMMERS, BOUDREAU, JJ., Dissent.

SUMMERS, J.,

dissenting and joined by KAUGER, J. and BOUDREAU, J.

T1 The "annexing ordinance" never became effective because it was never published as required by statute. The statute upon which the Court relies to "cure" the defective publication is 11 0.S8.1991 § 21-112, which reads:

When any territory is annexed to or detached from a municipality, whether by ordinance or court order, the mayor shall file and record a duly certified. copy of the ordinance or court order, together with an accurate map or plat of the territory, in the office of the county clerk of the county in which the territory, or the greater portion of it, is located. The record in the office of the county clerk shall be conclusive evidence of such annexation or detachment. (Emphasis added).

T2 The problem is that at the time this attempted annexation was filed in the Clerk's office there was no annexing ordinance in effect. The Oklahoma Municipal Code at 11 0.8.1991 § 14-106 states in pertinent part:

No ordinance having any subject other than the appropriation of monies shall be in force umless published or posted within fifteen (15) days after its passage. (Emphasis added).

T3 The courts regularly construe the word "shall" as imposing a mandatory requirement. Oklahoma Electric Cooperative, Inc. v. Oklahoma Gas and Electric Co., 1999 OK 35, ¶ 9, 982 P.2d 512, 514; Stonecipher v. District Court of Pittsburg County, 1998 OK 122, ¶ 14, 970 P.2d 182, 186.

[4 The "annexing ordinance" itself conditions its effectiveness on its publication:

Section 8. From and after the effective date of this Ordinance, said property so annexed shall be and become an integral part of the Town of Chelsea, Oklahoma, and shall be subject to the Ordinances thereof.
Section 4. Emergency Clause: It being necessary for the preservation of the peace, health, safety and public welfare of the citizens of the Town of Chelsea, Oklahoma, an emergency is hereby declared to exist by reason whereof this ordinance shall become effective immediately upon its passage and publication.

(See Transcript of Proceedings (10-19-01) PlLEx. 1) (emphasis added).

Thus it should be clear that when some person took the City Councils' work to the courthouse for filing there was no annexing ordinance in effect for the "curative statute" to cure.

15 The point was made by this court in East Central Oklahoma Electric Co-op., Inc. v. O.G. & E. Co., 1978 OK 3, 505 P.2d 1324, 1329:

An ordinance adopted in compliance with the statute [11 0.8.1971 § 579.2, now codified as 11 0.8.1991 § 14-106] with the emergency clause attached is not effective and in force until it has been published.

This statement exactly supports the law as set out in § 14-106 of the Oklahoma Municipal Code, and, in my opinion, is in no way changed by the later addition of the "conclusive evidence" language of § 21-112. This is so because § 21-112 only applies to "ordinances." Here there was no ordinance in effect-only an ineffective attempt to annex.

T6 Clearly the newspaper account of the council meeting, carrying no legal description of the land sought to be annexed, cannot qualify as the publication in full required by § 14-106, nor as the publication by title only required (when the emergency clause is attached) by § 14-107(c). With no statutorily-required publication the attempted annexation never took effect as an ordinance so as to invoke the provisions § 21-112.

17 Today's opinion effectively repeals the legislatively-required publication of an ordinance, and allows that publication to be replaced by filing the thing of record in the Clerk's office. I do not believe the Legislature wrote it to work that way. Therefore I respectfully dissent.

      . We note that the ordinance states that it "shall requires become effective immediately upon its passage and publication." This is a reiteration of title 11, section 14-106. Because the parties did not raise the language in the ordinance as an issue, we do not address it here.


author: RONALD J. STUBBLEFIELD, Judge.

text:
    2002 OK CIV APP 68
    Robert L. PATE, Plaintiff/Appellant, v. Rahman ALIAN, individually; and Pizza Inn, Inc., Defendants/Appellees, and Alian's, Inc., d/b/a Pizza Inn, Defendant.
    Nos. 96,368, 96,394.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Feb. 5, 2002.
    Rehearing Denied March 19, 2002.
    Doug Friesen, The Law Offices of Doug Friesen, Oklahoma City, OK, for Plaintiff{/Appellant.
    Amy S. Fisher, Larry D. Ottaway, Foliart, Huff, Ottaway & Bottom, Oklahoma City, OK, for Defendant/Appellee Rahman Alian.
    C. William Threlkeld, Fenton, Fenton, Re-neau & Smith, Oklahoma City, OK, for Defendant/Appeliee Pizza Inn, Inc.
   Opinion by

RONALD J. STUBBLEFIELD, Judge.

1 1 In these consolidated appeals, Plaintiff, Robert L. Pate, appeals from trial court orders granting summary judgment to two defendants-the franchisor corporation and the individual owner/manager of the restaurant-in a dram shop lability action seeking recovery for injuries caused by a patron who became intoxicated at a franchised Pizza Inn restaurant. At the time of this appeal, Plaintiffs claims in the district court were still pending against the defendant franchise restaurant. The trial court certified the orders granting summary judgment as appealable judgments pursuant to 12 O.S. Supp.2000 § 994(A). The consolidated appeals have been assigned to the accelerated docket pursuant to Okla. Sup.Ct. R. 1.36(@), 12 0.8. Supp.2000 ch. 15, app. 1. Based on our review, we find that judgment was correctly granted in favor of the franchisor, but not against the individual owner/manager. We affirm in part and reverse in part and remand for further proceedings.

STATEMENT OF FACTS

T2 On December 1, 1995, Rahman Alian, as an individual, entered into a "Franchise Agreement" with Pizza Inn, Inc., a Missouri corporation, to operate an Oklahoma City pizza restaurant under the name Pizza Inn. The franchise agreement identified "Rahman Alian, an individual" as the sole "Franchisee." However, Alian apparently incorporated the restaurant as Alian's, Inc., doing business as Pizza Inn, and acted as the manager of the restaurant.

[ 3 The record reveals that, on the night of August 1, 1997, Larry Martinez and his wife were patrons of the restaurant. Plaintiff alleged that Martinez had consumed four beers prior to arriving at the restaurant, and was served and consumed almost two pitchers of 3.2 beer while on the premises. When Martinez left the restaurant, he was intoxicated. While operating his vehicle in an intoxicated state, Martinez failed to yield the right of way in making a left turn off of May Avenue. He collided with Plaintiff, who was thrown from the motoreycle he was riding and sustained injuries. The accident occurred at approximately 1:00 a.m., on August 2, 1997. Martinez was arrested, charged and subsequently convicted of driving under the influence of alcohol.

T4 Plaintiff filed this action on April 1, 1999, seeking to recover both compensatory and punitive damages against Alian's, Inc., Rahman Alian, an individual, and Pizza Inn, Inc. He did not name Martinez as a party defendant.

T5 All of the named defendants sought summary judgment. Alian's, Inc., and Rab-man Alian claimed that they were entitled to judgment in their favor as a matter of law because, at the time of the collision, Plaintiff, like Martinez, was operating a vehicle while intoxicated. This was the only basis on which Alian's, Inc., sought summary judgment. They argued that, under Brigance v. Velvet Dove Restaurant, Inc., 1986 OK 41, 725 P.2d 300, "a plaintiff who was intoxicated at the time of the subject accident does not have standing to assert a claim under the judicially created 'dram shop' laws of the State of Oklahoma." The trial court rejected this contention as a basis for summary judgment in favor of Alfan's, Inc., and the matter remains pending in the district court against that defendant.

T6 Rahman Alian asserted an additional basis for entry of judgment in his favor-that the Pizza Inn restaurant "was operated as a corporation at the time of the alleged incidents giving rise to this lawsuit." He maintained that, at the time of Plaintiff's accident, he was an employee of Alian's, Inc., but did not personally serve beer to Martinez-that was done by a female employee. He further claimed that his status as a principal and shareholder of Alian's, Inc., did not expose him to liability in his individual capacity. He attached to his brief the "Certificate of Incorporation" for Alian's, Inc., which was filed with the Office of the Secretary of State on January 15, 1997.

17 Pizza Inn, Inc's summary judgment quest was based on the fact that it was not a commercial vendor of alcohol subject to liability under Brigance, and did not "sell, deliver or knowingly furnish alcoholic beverages to an intoxicated person" such that liability for violation of a statutory duty would be triggered under 37 O.S. Supp.1994 § 537 Pizza Inn, Inc., also maintained that, although it required franchises to protect its propriety trademarks and food quality, it neither required Rahman Alian's franchise restaurant to sell beer nor asserted any control over it in the area of service of alcohol. And, if a franchisee did elect to sell beer, the terms of the franchise agreement delegated all duties to the franchisee to comply with state alcoholic beverage laws.

8 The trial court granted summary judgment to Rahman Alian, individually, based on a determination that "the undisputed material facts establish that [he] did not directly participate in the service of alcohol to Mr. Martinez or order others to do so ... [and he] is not liable to Plaintiff under the remaining allegations of Plaintiff in his individual capacity." The trial court also granted summary judgment to Pizza Inn, Inc., finding that it did not "have a duty to Plaintiff through the Franchise Agreement, at law or otherwise relating to the Plaintiffs claims."

19 Plaintiff filed motions to reconsider, which the trial court denied. Plaintiff now appeals the judgments entered in favor of Rahman Alian, individually, and Pizza Inn, Inc.

STANDARD OF REVIEW

1 10 Summary judgment should be granted only where it is clear from the evidentiary materials that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. First Nat'l Bank and Trust Co. of Vinita v. Kissee, 1998 OK 96, 859 P.2d 502. In reviewing the trial court's grant of summary judgment, this court will examine the pleadings and evidentiary materials and determine if the moving party has addressed all material facts and supported those facts with admissible evidence. Union Oil Co. of Calif. v. Bd. of Equalization of Beckham Co., 1996 OK 40, ¶ 12, 913 P.2d 1330, 1333-34. All inferences and conclusions to be drawn from the eviden-tiary materials must be viewed in a light most favorable to the party opposing the motion. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. We are limited to the issues actually presented below, as reflected by the record before the trial court, rather than the one that could have been assembled. Norton v. Hughes, 2000 OK 32, ¶ 7, 5 P.3d 588, 590; Frey v. Independence Fire and Cas. Co., 1985 OK 25, ¶ 6, 698 P.2d 17, 20; Okla. Sup.Ct. R. 1.36(g), 12 O.S. Supp.2000, ch. 15, app. 1.

111 Plaintiffs motions to reconsider each were filed within ten days of the grant of summary judgment, and are properly treated as new trial motions. Horizon's, Inc. v. Keo Leasing Co., 1984 OK 24, ¶¶ 4-5, 681 P.2d 757, 758-59. Therefore, our standard of review here is abuse of discretion. Benson v. Tkach, 2001 OK CIV APP 100, ¶ 9, 30 P.3d 402, 404, citing Graves v. Lewis, 1958 OK 176, 327 P.2d 672. To reverse a trial court on grounds of abuse of discretion, we must find that the trial judge made a clearly erroneous conclusion and judgment against reason and evidence. Bank of Okla. v. Portis, 1997 OK CIV APP 32, ¶¶ 7-8, 942 P.2d 249, 252, citing Abel v. Tisdale, 1980 OK 161, 619 P.2d 608.

PROCEDURAL MATTER

1 12 As a preliminary matter, we note that Pizza Inn, Inc., has filed a motion to strike a pleading that it claims was improperly designated by Plaintiff for inclusion in the appellate record. Plaintiff had attempted below to file a twenty-four-page supplemental brief in support of his motion to reconsider the grant of summary judgment to Pizza Inn, Inc. The trial court denied Plaintiff leave to file the brief, citing to violations of the rules for Oklahoma District Courts and the Seventh Judicial District regarding page limitations and the requirement for delivery five days prior to hearing date.

1 18 Plaintiff has claimed that this supplemental brief should be considered on appeal because (1) the trial court would not have been harmed by reviewing it or issuing a continuance for the hearing on the motion to reconsider, and (2) the supplement is very relevant to the issue of the appeal-actual and apparent agency and the right of Pizza Inn, Inc., to control the operations and management of the restaurant. The Oklahoma Supreme Court deferred ruling on the motion to strike, but later entered an order directing Plaintiff to file a proper record in compliance with Rule 1.36, and admonishing him for other instances of failure to comply with rules.

114 The supplemental brief at issue is included with the voluminous trial court filings assembled for review. However, we will not consider it, as it is not within the seope of our review.

SUMMARY JUDGMENT OF RAHMAN ALIAN

15 We first will address the propriety of the trial court's grant of summary judgment to Rahman Alian, individually. In support of his motion for summary judgment, Rahman Alian claimed that (1) the restaurant was operated as a corporation by Alian's, Inc.; (2) he was an employee of that corporation; (8) he had no personal contact with Martinez and did not serve him beer-the server was female; and, (4) his status as a principal and shareholder of Alian's, Inc., did not expose him to liability in his individual capacity.

116 The appellate record establishes that Pizza Inn, Inc., was not the holder of an alcoholic beverage license. However, it does not clearly establish which person or entity, Rahman Alian or Alian's, Inc., actually did hold the license to sell such beverages at the Pizza Inn restaurant. And, the interrelationships between the parties defendant remain somewhat murky.

$17 The evidentiary materials indicate that, although he did not personally serve Martinez beer, Rahman Alian was present at the restaurant on the night Martinez was served, managing the restaurant and supervising the service of food and beverages. Plaintiff submitted evidentiary materials tending to show that Rahman Alian dictated the restaurant policy regarding service of intoxicating beverages-that he even had directed employees to continue to serve beer to patrons who were intoxicated. As previously noted, "[nlo holder of a retail license or permit to sell low-point beer, or an employee or agent of a holder of such a license or permit, shall knowingly, willfully and wantonly sell, deliver or furnish low-. point beer to an intoxicated person." 37 O.S. Supp.1996 § 247. "A commercial vendor's self-imposed ignorance concerning the intoxication of its patrons should not operate in its favor to prevent a jury determination of that issue." Copeland v. Tela Corp., 1999 OK 81, ¶ 10, 996 P.2d 931, 934.

1 18 The franchise agreement of December 1995 with Pizza Inn, Inc., identified "Rahman Alian, an individual" as the sole franchisee, but he claimed in his motion for summary judgment that the restaurant actually was operated by the corporation, Alian's, Inc. Rahman Alian made this statement in his brief: "Mr. Alian's status as a principal and shareholder of Alian's, Inc., does not expose him to a lawsuit for the negligence as alleged in the Petition."

19 The evidentiary material submitted in regard to the corporation Alian's, Inc., consisted only of a certificate of-incorporation, dated after the effective date of the franchise agreement. The record does not specifically identify all the officers or shareholders of Alian's, Inc., but it does indicate that Rahman Alian may have been the sole, or possibly one of two shareholders of the corporation. Plaintiff submitted excerpts from Rahman Alian's deposition wherein he stated that he was the president of Alian's, Inc., and "responsible for the day-by-day ... operational business [and] handling the affairs based on the agreements."

120 Under Oklahoma law, officers and shareholders of a corporation generally are shielded from individual liability, but there are exceptions to this general rule which are raised by Plaintiff and are not addressed by Rahman Alian's summary judgment materials. See Thomas v. Vertigo, Inc., 1995 OK CIV APP 45, 900 P.2d 458; In re Estate of Rahill, 1991 OK CIV APP 83, ¶ 8, 827 P.2d 896, 897. Plaintiff has the right to recover against Rahman Alian, individually, if he can establish that Rahman Alian neglected to perform his official corporate duties. See Preston-Thomas Constr., Inc. v. Central Leasing Corp., 1978 OK CIV APP 10, ¶ 8, 518 P.2d 1125, 1126-27. And, the corporate shield may be disregarded where it is used to justify wrong, defend crime or defeat an overriding public policy. Thomas at ¶ 6, 900 P.2d at 460; Estate of Rahill at ¶ 8, 827 P.2d at 897. "The goal in piercing the corporate veil is to impute liability for the acts of the corporation to the responsible persons." Id. The record reveals that controversy exists as to material facts in this regard.

{21 Based on the foregoing analysis, we conclude that the grant of summary judgment in favor of Rahman Alian, an individual, was error.

SUMMARY JUDGMENT OF PIZZA INN, INC.

122 Plaintiff first claims that the trial court erred in "ruling that Pizza Inn, Inc., did not owe a duty to their [sie ] franchisees." Actually, the ruling of the trial court was that Pizza Inn, Inc., did not owe a duty to Plaintiff under the franchise agreement or at law. Plaintiff also claims there are issues of fact remaining on the issue of "control between the Franchisor and Franchisee" and, therefore, there is a valid question whether the negligence of the employees of this particular franchised restaurant should be attributed to Pizza Inn, Inc., and/or whether Pizza Inn, Inc., was negligent in its duty to train and educate its franchisee's employees. For the following reasons, we disagree and find that the judgment of the trial court was correct.

123 Plaintiff asserted that summary judgment was not appropriate because issues of fact remained regarding whether Pizza Inn, Inc., maintained or could have maintained control over the franchise in the sale or service of alcohol. In support of this assertion, Plaintiff pointed specifically to a provision of the franchise agreement requiring Rahman Alian to pay Pizza Inn, Inc., a weekly royalty fee equivalent to four percent of the restaurant's gross sales, which included sale of alcoholic beverages if the franchisee elected to sell such beverages. And, although Plaintiff did not dispute that there were terms of the franchise agreement which specifically denied any intent to create a partnership, joint venture, agency or master/servant relationship, he pointed to other provisions of the agreement that he maintained: (1) allowed Pizza Inn, Inc., to terminate the franchise agreement at its sole discretion, based on violation by the franchisee of enumerated conditions/requirements; (2) directed that the franchisee carry insurance and list Pizza Inn, Inc., as an additional insured; (8) granted Pizza Inn, Inc., free access to the restaurant premises at all times; and (4) granted Pizza Inn, Inc., authority to shut down the franchise. According to Plaintiff, these provisions showed that Pizza Inn, Inc., exercised such complete control over its franchisees that it should be subject to Brigance-type lability for over-serving Martinez. We disagree.

124 In Brigance v. Velvet Dove Restaurant, Inc., 1986 OK 41, 725 P.2d 300, the Oklahoma Supreme Court found that a "commercial vendor" for on the premises consumption is under a duty, imposed both by statute and common law principles, to exercise reasonable care in selling or furnishing aleoholic beverages to persons who by previous intoxication may lack full capacity of self-control to operate a motor vehicle, and therefore could subsequently injure a third party. Id. at ¶ 17, 725 P.2d at 304. The court held that "one who sells intoxicating beverages for on the premises consumption has a duty to exercise reasonable care not to sell liquor to a noticeably intoxicated person." Id.

£25 In responding to Pizza Inn, Inc.'s motion for summary judgment, Plaintiff admitted the following material facts: (1) Rah-man Alian and Alian's, Inc., own and operate a Pizza Inn franchise at SW. 59th and May in Oklahoma City, Oklahoma; (2) Pizza Inn, Inc., does not own or operate Alian's franchise; (8) Pizza Inn, Inc., does not have any employees that own or operate Alian's franchise; (4) None of the owners or employees of Alian's franchise are, or have been employees of Pizza Inn, Inc.; (5) Pizza Inn, Inc., does not serve or sell alcohol or beer at any company restaurants or at any franchise restaurants, and did not serve or sell alcohol or beer in August of 1997; (6) Pizza Inn, Inc., did not sell or serve any alcohol or beer to anyone on August 1, 1997, or anytime in 1997; (7) Pizza Inn, Inc., does not, and did not in 1997, hold a license or permit to sell alcohol in Oklahoma; (8) Pizza Inn., Inc., did not require any franchise to serve beer in 1997 and has never required a franchise to sell beer; (9) Under terms of the franchise agreement, Rahman Alian specifically agreed that he would comply strictly with state alcoholic beverage and other laws; and, (10) Larry Martinez was arrested and served time in jail for the felony charge of driving under the influence of alcohol at the time of the accident with Plaintiff.

1 26 It is clear from these admissions that Pizza Inn, Ine., was not the "commercial vendor" nor the "one who sells intoxicating beverages for on the premises consumption" discussed in Brigance. Id. at ¶ 17, 725 P.2d at 304. The determinative admissions were that, under the franchise agreement, the decision to sell intoxicating beverages was that of the franchisee, and that the franchisee agreed to abide by all state alcoholic beverages laws. All of the arguments of Plaintiff regarding the high degree of control retained by Pizza Inn, Inc., do not address the issue of control over the sales of intoxicating beverages. Nothing in this record indicates any duty of Pizza Inn, Inc., to Plaintiff in regard to the sale of alcoholic beverages, let alone any breach of duty.

127 Plaintiff asserted that issues of fact remained as to whether Pizza Inn, Inc., was negligent in its failure to train its franchisees in the area of proper service of beer. Included with his evidentiary materials was a copy of an "Alcohol Awareness" guide/manual that Pizza Inn, Inc., had in its possession but had phased out and had not used in providing training for operation of franchises since 1994. In his motion to reconsider the grant of summary judgment to Pizza Inn, Inc., Plaintiff reiterated his argument that the level of control asserted by Pizza Inn, Inc., over its franchisees and the profit potential from alcohol sales, carried "a duty to properly train and supervise the Franchisees in the area of alcohol awareness." We disagree.

28 In the present case, it may be true that Pizza Inn, Inc., had some economic gain from the sale of alcohol that it permitted at this franchised restaurant, but it did not require its franchisees to sell intoxicating beverages, did not maintain any control over service of such beverages, and it was conclusively established that Pizza Inn, Inc., did not hold an alcoholic beverage license. Plaintiff's admissions (numbered (2) through (9) above) clearly establish that the decision to sell intoxicating beverages was that of the franchisee, as was the duty to abide by all state alcohol beverage laws. Under those admitted facts, the trial court correctly concluded that Pizza Inn, Inc., had no duty to Plaintiff.

CONCLUSION

129 Before entering summary judgment, a trial court must examine whether the eviden-tiary materials offered substantiate the granting of judgment for the moving party. Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, 743 P.2d 682 (approved for publication by the Oklahoma Supreme Court). The evidentiary materials of record herein establish the entitlement of Pizza Inn, Inc., to judgment as a matter of law. However, controverted issues of fact remain in regard to the potential liability of Rahman Alian, individually. Accordingly, we affirm the judgment in favor of Pizza Inn, Inc., and reverse the judgment in favor of Rahman Alian. The cause is remanded for further proceedings.

130 AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.

REIF, C.J., and TAYLOR, P.J., concur.

      . There were terms in the agreement which stated that the agreement "shall for all purposes be governed by and interpreted and enforced in accordance with the laws of the State of Texas." However, the parties have not invoked any foreign law and, therefore, the law of Oklahoma is deemed to govern. C.I.T. Corp. v. Edwards, 1966 OK 180, 418 P.2d 685.

      . They attached evidentiary materials to their brief, which included a hospital toxicology lab report, indicating that at 2:39 a.m., Plaintiff's blood alcohol content was in the range of .10.

      . Pizza Inn, Inc., may have intended to cite to 37 O.S. Supp.1996 § 247, which provides that "[nlo holder of a retail license or permit to sell low-point beer, or an employee or agent of a holder of such a license or permit, shall knowingly, willfully and wantonly sell, deliver or furnish low-point beer to an intoxicated person." It is undisputed that Martinez consumed "3.2 beer," which is not an "alcoholic beverage," 37 O.S. Supp.1996 § 506(3), and, therefore, does not fall under the provisions of section 537 cited by Pizza Inn, Inc. However, the statutory distinction between low-point beer and other alcoholic beverages is a distinction without effect in this opinion. In this opinion, our use of words such as alcohol and liquor will apply to both beer and other spirits as in McGee v. Alexander, 2001 OK 78, ¶ 6, n. 2, 37 P.3d 800.