In the 

Missouri Court of Appeals Western District 

  VILLAGE OF BIG LAKE, MISSOURI, 

Appellant, 

v. 

BNSF RAILWAY COMPANY, INC. 

AND MASSMAN CONSTRUCTION 

CO., 

Respondents. 

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WD77016 

OPINION FILED:  June 3, 2014 

Appeal from the Circuit Court of Holt County, Missouri 

The Honorable Roger M. Prokes, Judge 

Before Division Three:  Thomas H. Newton, Presiding Judge, Mark D. Pfeiffer, Judge 

and Cynthia L. Martin, Judge 

 Village of Big Lake, Missouri ("Big Lake") appeals from the trial court's grant of 

summary judgment in favor of BNSF Railway Company, Inc. ("BNSF") and Massman 

Construction Co. ("Massman") (collectively "Respondents").  The Respondents claimed 

that language in permit agreements between Big Lake and BNSF's predecessor, 

Burlington Northern Railroad, released Big Lake's claims for negligence and trespass 

relating to damage to Big Lake's underground water lines and a fire hydrant.  Because 

genuine issues of material fact as to which Respondents bear the burden of proof and 

2 

persuasion remain in dispute, the entry of summary judgment is precluded as a matter of 

law.  We reverse and remand to the trial court for further proceedings. 

Factual and Procedural History 

 On May 13, 2013, Big Lake filed a two count petition against BNSF and Massman 

alleging negligence and trespass.  Big Lake alleged that in the summer of 2011, following 

a flood, Massman performed work for BNSF on a rail line near the southern boundary of 

Big Lake.  Big Lake alleged that Massman used an excavator to repeatedly chop into the 

ground to pull a floating repair barge through flood waters, cutting Big Lake's 

underground water line in five different locations.  Big Lake also alleged that Massman 

destroyed a fire hydrant by covering it with fill material.  

 In lieu of filing an answer,1 Respondents filed a joint motion for summary 

judgment, accompanying suggestions in support, and a statement of uncontroverted 

facts.2  The Respondents argued that Big Lake and Burlington entered into two pipeline 

permit agreements in 1991 which authorized Big Lake to place its water lines "upon, 

along, or across the right-of way" of the rail line at two specifically identified locations, 

and that these agreements contained language releasing any claims Big Lake had for 

damage to the water line or other Big Lake property.     

                                             1

Big Lake filed a motion for default judgment on the theory that Respondents had never filed an answer to 

the petition and instead filed a motion for summary judgment to assert the defense of release.  The trial court denied 

the motion.     

 2Big Lake failed to include the motion for summary judgment and related pleadings in the legal file on 

appeal in violation of Rule 81.12 warranting dismissal of the appeal.  Snelling v. Southwestern Bell Telephone Co., 

996 S.W.2d 601, 603 (Mo. App. W.D. 2005).  However, the Respondents filed a supplemental legal file including 

these documents.  In view of our policy to decide a case on its merits rather than its technical defects, we elect not to 

dismiss the appeal on this basis.  Id.   

3 

 Big Lake opposed the motion for summary judgment, though it admitted the 

majority of the uncontroverted facts set forth in the motion.  The admitted uncontroverted 

facts establish the following:   

●  Big Lake is a Missouri municipality located in Holt County, Missouri.  BNSF 

operates and maintains an intercontinental railroad, including a line near the southern 

boundary of Big Lake.  In the summer of 2011, a flood occurred at or around the Big 

Lake area.  At all pertinent times, Big Lake has operated and maintained a water line at or 

near the southern boundary of Big Lake.  This water line goes through and under BNSF 

tracks at two separate points.  Massman entered into a contractual relationship with 

BNSF in which Massman agreed to perform work on the BNSF rail line in the Big Lake 

area at BNSF's direction.   

 ●  On November 5, 1991, Big Lake entered into two permit agreements with 

BNSF's predecessor, Burlington.  In these pipeline permits, BNSF's predecessor allowed 

Big Lake, in consideration for a fee and for the covenants and promises made in the 

permits, to construct and operate its water line, upon, along, or across the BNSF right of 

way, underneath the surface thereof, and under and along the BNSF tracks.  Pipeline 

permit No. PX-91-8090 allows Big Lake "license and permission to excavate for, 

construct, maintain, and operate one (1) water line under our Burlington tracks near MP 

4.66 Survey Station 244 + 84."  Pipeline permit No. PX-91-8091 allows Big Lake 

"license and permission to excavate for, construct, maintain, and operate one (1) water 

line under our Burlington tracks near MP 5.73 Survey Station 301 + 22."  Both permits 

referred to the specific water line location therein described as: "Facility upon, along or 

4 

across the right-of-way of Burlington, underneath the surface thereof, and under and 

along the tracks of Burlington, as the case may be . . ."     

 ●  Paragraph 7 of both of the pipeline permits provides: 

Permittee shall and hereby releases and discharges Burlington of and from 

any and all liability for damage to or destruction of said Facility, and any 

other property of Permittee located on or near Burlington's premises, and 

shall and hereby assumes any and all liability for injury to or death of any 

and all persons whomsoever, including officers, employees, and agents of 

the parties hereto, and loss of or damage to property to whomsoever 

belonging, including property owned by, leased to, or in the care, custody, 

and control of the parties hereto, in any manner arising from or during the 

excavation for, construction, reconstruction, use, maintenance, repair, or 

removal of said Facility, however such injury, death, loss, damage, or 

destruction aforesaid may occur or be caused, and shall and hereby does 

indemnify and save harmless Burlington of and from any and all claims, 

demands, suits, actions, damages, recoveries, judgments, costs, or expenses 

arising or growing out of or in connection with any such injury, death, loss, 

damage, or destruction aforesaid.  Permittee further agrees to appear and 

defend in the name of Burlington any suits or actions at law brought against 

Burlington on account of any such personal injury or death, and loss and 

damage to or destruction of property, and to pay and satisfy any final 

judgment that may be rendered against Burlington in any such suit or 

action.  THE LIABILITY ASSUMED BY PERMITTEE SHALL NOT BE 

AFFFECTED BY THE FACT, IF IT IS A FACT, THAT THE LOSS, 

DAMAGE, DEATH, OR INJURY WAS OCCASIONED BY OR 

CONTRIBUTED TO BY THE NEGLIGENCE OF BURLINGTON, ITS 

AGENTS, SERVANTS, EMPLOYEES, OR OTHERWISE. 

●  The pipeline permits provide that BNSF may cancel and terminate the license 

and permission extended to Big Lake upon thirty days written notice.  Big Lake continues 

to operate and maintain its water lines pursuant to the pipeline permits. 

●  Following the flooding of 2011, BNSF and Massman undertook a massive 

effort to return the BNSF tracks in the Big Lake area to service.  Big Lake alleges that 

during this repair work, BNSF and Massman covered or destroyed a water line and a fire 

5 

hydrant belonging to Big Lake.  Big Lake alleges that the damage to its water line at the 

intersection of Cemetery Road was 175 feet from BNSF's center track, and 200 feet from 

the BNSF East and West Center Line.  Big Lake further alleges that the damaged fire 

hydrant was located at the Highway 111 track intersection, approximately 53 feet from 

the center track. 

 Big Lake denied only two of the "uncontroverted facts" set forth in the 

Respondents' motion.  Big Lake denied the Respondents' statement that "Paragraph 7 of 

both pipeline permits releases BNSF from any liability for damage or destruction of the 

water line," noting the statement was not a contention of fact, but instead a legal 

conclusion.  Big Lake also denied as a legal conclusion Respondents' statement that 

"[t]he pipeline permits place the responsibility for the construction, reconstruction, repair, 

or maintenance of the water lines solely upon Big Lake."3  Big Lake did not set forth any 

additional material facts remaining in dispute in the manner required by Rule 74.04.4   

Big Lake contested the Respondents' right to summary judgment as a matter of 

law.  Big Lake argued that the damage to the water line and fire hydrant (which was 

alleged to have occurred anywhere from 53 to 200 feet from the tracks) was not within 

the scope of the release because the damage was not "on or near" BNSF's premises.  Big 

Lake argued that the release did not use the words "negligence" or "fault" or their 

equivalents as required by the Supreme Court's decision in Alack v. Vic Tanney 

                                            3We agree with Big Lake that the two uncontroverted facts it denied were legal conclusions, and not 

assertions of fact.  Legal conclusions set forth as "uncontroverted facts" in a motion for summary judgment are not 

binding on the non-movant or the court.  Rycraw v. White Castle Systems, Inc., 28 S.W.3d 495, 498 (Mo. App. E.D. 

2000).  4Rule 74.04(c)(2) permits a response to a motion for summary judgment to "set forth additional material 

facts that remain in dispute, which shall be presented in consecutively numbered paragraphs and supported in the 

manner prescribed by Rule 74.04(c)(1)."  

6 

International of Missouri, Inc., 923 S.W.2d 330 (Mo. banc 1996), rendering the release 

invalid as a matter of law to release Big Lake's negligence claim.  Big Lake argued that 

the release was unenforceable to release Big Lake's claims of trespass and gross 

negligence, future claims which cannot be released as a matter of law pursuant to Alack.  

Finally, Big Lake argued that it was not a sophisticated party as "it is a small town that is 

rarely involved in matters such as these, while the railroad regularly enters in to these 

types of contracts."   

 In their reply suggestions, the Respondents acknowledged that the requirements 

for release of future negligence claims are different for a consumer than for sophisticated 

parties, and argued that the release was negotiated between sophisticated parties.  The 

Respondents alternatively argued that the language in the release satisfies the 

requirements for consumer transactions set forth in Alack because it is "clearly stated and 

explicit." 

 On November 7, 2013, the trial court entered an amended judgment granting the 

Motion for Summary Judgment.5  Big Lake appeals. 

Standard of Review 

 "Appellate review of the grant of summary judgment is de novo."  Dilley v. 

Valentine, 401 S.W.3d 544, 547-48 (Mo. App. W.D. 2013) (citing ITT Commercial Fin. 

Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)).  "We 

review the record in the light most favorable to the party against whom the judgment was 

                                             5

On October 7, 2013, the trial court entered an order granting the Motion for Summary Judgment.  The 

November 7, 2013 amended judgment substituted "amended judgment" for the word "order" in the title. 

7 

entered."  Jordan v. Peet, 409 S.W.3d 553, 557 (Mo. App. W.D. 2013).  "'Summary 

judgment is appropriate when the moving party has demonstrated, on the basis of facts to 

which there is no genuine dispute, a right to judgment as a matter of law.'"  Id. (quoting 

Roberts v. BJC Health System, 391 S.W.3d 433, 437 (Mo. banc 2013)). 

The defendant establishes the right to judgment as a matter of law by 

showing one of the following: (1) facts negating any one of the claimant's 

elements necessary for judgment; (2) that the claimant, after an adequate 

period of discovery, has not been able to—and will not be able to—produce 

evidence sufficient to allow the trier of fact to find the existence of one of 

the claimant's elements; or (3) facts necessary to support his properly 

pleaded affirmative defense. 

Id.  "We will affirm a summary judgment under any theory supported by the record."  Id.  

"However, 'where it is unclear from the summary judgment record that a basis exists for 

the grant of summary judgment, we will reverse.'"  Id. (quoting Cody v. Mo. Bd. of Prob. 

& Parole, 111 S.W.3d 547, 552 (Mo. App. W.D. 2003)).  "'An abundance of caution 

must be exercised in granting a motion for summary judgment because it is an extreme 

and drastic remedy that borders on the denial of due process because the opposing party 

is denied its day in court.'"  Id. (quoting Bank of Am., N.A. v. Reynolds, 348 S.W.3d 858, 

860 (Mo. App. W.D. 2011)).   

Analysis 

 Big Lake raises four points on appeal.  Big Lake contends that the trial court erred 

because the claims alleged in Big Lake's petition were not released in that (1) the liability 

waiver in the pipeline permits did not explicitly mention that it waived negligence; (2) the 

petition contained a well-pled claim for trespass, an intentional tort, which cannot be 

released in advance under Missouri law; (3) the petition contained a well-pled claim for 

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gross negligence which cannot be released in advance under Missouri law; and (4) the 

basis for the summary judgment was an affirmative defense which was not first raised in 

a responsive pleading.  Big Lake's first point relied on is dispositive of this appeal.   

Big Lake contends that paragraph 7 of the pipeline permits was ineffective to 

release its claim of negligence pursuant to the Supreme Court decision in Alack because it 

did not explicitly mention that it waived negligence.  In Alack, the plaintiff was injured 

using health club facilities.  923 S.W.2d at 332.  The plaintiff "had signed a two-page, 

seventeen-paragraph 'Retail Installment Contract' containing a general exculpatory 

clause."  Id.  The Supreme Court held that the clause was ambiguous and that the club 

"did not insulate itself from liability for future negligence because the exculpatory clause 

did not use the word 'negligence' or 'fault' or their equivalents so that a clear and 

unmistakable waiver occurred."  Id.  In reaching this decision, the Supreme Court noted 

that "[h]istorically, Missouri appellate courts have required that a release from one's own 

future negligence be explicitly stated."  Id. at 336.  The Supreme Court concluded that:  

[T]he best policy is to follow our previous decisions and those of other 

states that require clear, unambiguous, unmistakable, and conspicuous 

language in order to release a party from his or her own future negligence.  

The exculpatory language must effectively notify a party that he or she is 

releasing the other party from claims arising from the other party's own 

negligence.  Our traditional notions of justice are so fault-based that most 

people might not expect such a relationship to be altered, regardless of the 

length of an exculpatory clause, unless done so explicitly.  General 

language will not suffice.   

Id. at 337.   

Applying its holding, the court held that the clause at issue used the terms "any 

damages," "any . . . injuries," and "any and all claims, demands, damages, rights of 

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action, present or future . . . [] arising out of the Member's . . . use . . . of said gymnasium 

. . ." was "ambiguous because it did not specifically state that a member was releasing 

[the club] for its own future negligence."  Id.  The court concluded that: 

The better rule is one that establishes a bright-line test, easy for courts to 

apply, and certain to alert all involved that the future "negligence" or "fault" 

of the party is being released.  The words "negligence" or "fault" or their 

equivalents must be used conspicuously so that a clear and unmistakable 

waiver and shifting of risk occurs.  There must be no doubt that a 

reasonable person agreeing to an exculpatory clause actually understands 

what future claims he or she is waiving. 

Id. at 337-38 (emphasis added).     

 Paragraph 7 of the pipeline permits does not satisfy the requirements of Alack.  

Paragraph 7 contains five clauses: 

[1.] Permittee shall and hereby releases and discharges Burlington of and 

from any and all liability for damage to or destruction of said Facility, and 

any other property of Permittee located on or near Burlington's premises,  

[2.] and [Permittee] shall and hereby assumes any and all liability for injury 

to or death of any and all persons whomsoever, including officers, 

employees, and agents of the parties hereto, and loss of or damages to 

property to whomsoever belonging, including property owned by, leased to, 

or in the care, custody, and control of the parties hereto, in any manner 

arising from or during the excavation for, construction, reconstruction, 

use, maintenance, repair, or removal of said Facility, however such injury, 

death, loss, damage, or destruction aforesaid may occur or be caused,  

[3.] and [Permittee] shall and hereby does indemnify and save harmless 

Burlington of and from any and all claims, demands, suits, actions, 

damages, recoveries, judgments, costs, or expenses arising or growing out 

of or in connection with any such injury, death, loss, damage, or destruction 

aforesaid.   

[4.] Permittee further agrees to appear and defend in the name of Burlington 

any suits or actions at law brought against Burlington on account of any 

such personal injury or death, and loss and damage to or destruction of 

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property, and to pay and satisfy any final judgment that may be rendered 

against Burlington in any such suit or action.   

[5.] THE LIABILITY ASSUMED BY PERMITTEE SHALL NOT BE 

AFFFECTED BY THE FACT, IF IT IS A FACT, THAT THE LOSS, 

DAMAGE, DEATH, OR INJURY WAS OCCASIONED BY OR 

CONTRIBUTED TO BY THE NEGLIGENCE OF BURLINGTON, ITS 

AGENTS, SERVANTS, EMPLOYEES, OR OTHERWISE. 

(Emphasis added.)   

 The first clause plainly addresses the subject of Big Lake's release of claims for its 

own damages, and releases Burlington.  The second clause addresses the subject of Big 

Lake's assumption of liability, and by its plain terms comes into play only where loss or 

damage to someone other than Big Lake is caused by use of, or work of some sort on, the 

water line, a factual scenario not implicated in this case.  The third and fourth clauses 

address Big Lake's obligation to indemnify and defend Burlington for claims of third 

parties arising from loss or damage described in the second clause.  The fifth clause refers 

to the "liability assumed" by Big Lake, and thus to the second clause, and states that Big 

Lake's assumed liability will be unaffected by the negligence of Burlington or others.    

Plainly, the second, third, fourth and fifth clauses of paragraph 7 of the pipeline 

permits are not applicable to this case.  Each addresses the subject of Big Lake's 

assumption of liability, and thus its indemnity obligation.  Indemnity and release are 

"distinct legal concepts."  Tri-State Gas Co. v. Kansas City Southern Ry. Co., 484 S.W.2d 

252, 254 (Mo. 1972).  A contract of release extinguishes liability, where a contract of 

indemnity merely shifts liability from one party to another.  Alack, 923 S.W.2d at 338.  

Thus, the use of the word "negligence" in the fifth clause of paragraph 7 applies only to 

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Big Lake's indemnity obligation for damages claimed by third parties, and operates to 

restrain Big Lake's right to shift its assumed liability back to Burlington or others 

indemnified.  The reference to "negligence" in the fifth clause does not refer or apply to 

the release language in the first clause of paragraph 7, the only clause which addresses 

claims asserted by Big Lake for its own damages.  Gottschalk v. Consolidated R.R. Corp., 

469 F.Supp. 254, 257-58 (S.D.N.Y. 1979) (use of the word negligence in exculpatory 

clause referred only to indemnification obligation and not to release and that usage 

establishes that when the parties intended to cover liability for negligence they said so 

directly).  

The first clause releases Burlington (now BNSF) from liability for damage to "said 

Facility" (Big Lake's water line) or to any other property belonging to Big Lake "located 

on or near" BNSF's premises.  The release language does not use the words "'negligence' 

or 'fault' or their equivalents . . . so that a clear and unmistakable waiver and shifting of 

risk occurs."  Alack, 923 S.W.2d at 337.  The release clause in Paragraph 7 does not meet 

the Alack requirements.6 

 The Respondents counter that Alack does not apply where sophisticated parties 

negotiate a release at arm's length.  It is true that Alack acknowledged that, "This case 

does not involve an agreement negotiated at arm's length between equally sophisticated 

commercial entities.  Less precise language may be effective in such situations, and we 

reserve any such claims."  923 S.W.2d at 338 n.4.  The Supreme Court's later holdings in 

                                            6We acknowledge that Respondents do not agree with our conclusion that the fifth clause of paragraph 7 of 

the permits does not modify the first clause.  Without conceding the point, Respondents did acknowledge during oral 

argument that the first clause of paragraph 7 of the permits, standing alone, violates Alack.  

12 

Purcell Tire and Rubber Co., Inc. v. Executive Beechcraft, Inc., 59 S.W.3d 505 (Mo. 

banc 2001) and Utility Service and Maintenance Inc. v. Noranda Aluminum, Inc., 163 

S.W.3d 910 (Mo. banc 2005) solidified that the holding in Alack does not apply to a 

release negotiated between "equally sophisticated commercial entities."   

 In Purcell, the plaintiff decided to buy a used airplane and hired Beechcraft to 

perform a pre-purchase survey of the plane for the price of $1,250.00.  59 S.W.3d at 507-

08.  The last paragraph of the contract provided that Beechcraft's liability, if any, under 

the contract was limited to the cost of services performed and that the parties agree to 

indemnify and hold harmless Beechcraft from any damages or expenses claimed by any 

party to the contract beyond the cost of the services.  Id. at 508.  Purcell later discovered 

an oil leak that Beechcraft did not mention.  Id.  Purcell sued Beechcraft for breach of 

contract and negligence seeking damages in the amount of $372,458.  Id.  Beechcraft 

moved for summary judgment citing the affirmative defense that the contract limited 

liability to $1,250.00.  Id.  The trial court granted summary judgment in favor of 

Beechcraft.  Id.  

On appeal, the Supreme Court began its analysis by observing that both Purcell 

and Beechcraft are "sophisticated businesses that contracted at arm's length."  Id.  The 

Court noted that Purcell "is the 16th or 17th largest retail tire chain in America--ranks in 

the top four commercial tire dealers and retread providers in the country," and that 

Purcell's "president, a former pilot, has been involved in 15 plane purchases and 14 pre-

purchase inspections."  Id.  The Court observed that "Beechcraft, a general aviation 

business, performs pre-purchase surveys for plane buyers," and "also performs more 

13 

stringent inspections . . . consistent with manufacturers' or Federal Aviation 

Administration standards."  Id.  The Court held that "[s]ophisticated parties have freedom 

of contract--even to make a bad bargain, or to relinquish fundamental rights," including 

"contractually limit[ing] future remedies.  Id.  The Supreme Court thus concluded that 

"[s]ophisticated businesses that negotiate at arm's length may limit liability without 

specifically mentioning 'negligence,' 'fault,' or an equivalent."  Id. at 509 (citing Alack, 

923 S.W.2d at 338 n.4).   

This conclusion did not mean the exculpatory clause in Purcell was automatically 

enforceable.  The clause remained subject to a claim that it was otherwise unenforceable 

because of ambiguity.  Purcell argued that the liability limitation was also ambiguous 

because it encompassed "any" damages or injuries, including claims that cannot be 

released in advance as a matter of public policy in Missouri.  Id. at 510.  Purcell relied on 

Alack, where the Supreme Court held: 

Additionally, there is no question that one may never exonerate oneself 

from future liability for intentional torts or for gross negligence, or for 

activities involving the public interest.  Yet the words used here would 

purport to include these claims which cannot be waived.  Although these 

claims were not asserted here, they demonstrate the ambiguity of the 

contractual language.  

923 S.W.2d at 337.  In rejecting this argument, the Court in Purcell found that 

"[l]anguage that is ambiguous to an unsophisticated party may not be ambiguous to a 

sophisticated commercial entity.  Beechcraft and Purcell Tire were sophisticated 

14 

businesses, experienced in this type of transaction.  In this commercial context no 

ambiguity exists."  Id. at 510-11 (citations omitted) (emphasis added).7    

 Noranda involved an indemnity provision in a contract between two businesses 

which provided that, "Seller shall indemnify and save Purchaser free and harmless from 

and against any and all claims, damages, liabilities or obligations of whatsoever kind 

. . . ."  163 S.W.3d 910, 911.  Following a bench trial, the trial court held that the 

provision was not enforceable.  Id. at 912.  On appeal, the Supreme Court acknowledged 

that in its review of release clauses in contracts, it "has drawn a distinction between 

contracts with consumers and contracts between businesses of equal power and 

sophistication."  Id. at 913.        

 It is thus clear that a different standard applies to determine whether general 

exculpatory clauses or indemnity clauses can cover claims of future negligence 

depending upon whether the parties to the contract are "sophisticated businesses, 

experienced in this type of transaction."  Purcell, 59 S.W.3d at 510-11.  Here, the parties 

disagree on the subject of who bore the burden to prove, or disprove, the "sophisticated 

parties" exception mentioned in Alack and formalized in Purcell.  No Missouri case has 

addressed this precise question.        

"Release is an affirmative defense and it is a well settled general rule that the 

burden of proof to establish affirmative defenses is on the defendant from the beginning 

                                            7Purcell thus limited Alack's holding that a release clause is "ambiguous" merely because it could include 

claims that cannot be the subject of future release to contracts that are not between sophisticated parties.  The court 

in Purcell was not required to determine, however, whether sophisticated parties can permissibly contract to release 

claims of the type mentioned in Alack as ineligible for future release, as the plaintiff in Purcell only asserted claims 

for negligence and for breach of contract.   

15 

and remains upon him throughout the case."  Jenkins v. Simmons, 472 S.W.2d 417, 420 

(Mo. 1971). Thus, a defendant relying on a contract of release bears the burden of proof 

on each of the essential elements of a contract claim, including entry into the release in 

exchange for consideration, and that the circumstances at issue are within the scope of the 

release.  See State ex rel. Normandy Orthopedics, Inc. v. Crandall, 581 S.W.2d 829, 834 

(Mo. banc 1979) (holding that burden of persuasion does not shift merely because 

execution of release is established, and wrongdoer remains obligated to establish that 

release intended to discharge him if he is unnamed); Nigro v. St. Joseph Medical Center, 

371 S.W.3d 808, 821 (Mo. App. E.D. 2012) ("In order to prove the defense of release, 

defendants must show that the plaintiff intended to release them from the liability for the 

subject conduct and that the plaintiff used clear, precise, and unequivocal language in 

doing so."); Ensminger v. Burton, 805 S.W.2d 207, 217 (Mo. App. W.D. 1991) 

("[R]elease [is an] affirmative defense[] and the risk of non-persuasion rests upon the 

defendant to prove the terms of agreement as well as its execution."); Woodford v. Illinois 

Central Gulf Railroad Co., 518 S.W.2d 712, 716 (Mo. App. 1974) ("[A] material element 

of defendant's release theory [is] that the release covered the injuries that plaintiff is now 

suing for.").  

There is only one "exception to the general rule in regard to releases in that where 

the execution of a release purporting to rest on [] consideration is admitted the burden is 

on the plaintiff to prove some invalidity in the release."  Jenkins, 472 S.W.2d at 420.  

"Invalidity" refers to the legal enforceability of the release.  See, e.g., Angoff v. Mersman, 

917 S.W.2d 207, 211 (Mo. App. W.D. 1996) ("To avoid an affirmative defense alleged in 

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an answer, a plaintiff must plead specifically matters of affirmative avoidance," such as 

fraud, mistake or unfair dealing); Landmark North County Bank & Trust Co. v. National 

Cable Training Centers, Inc., 738 S.W.2d 886, 890 (Mo. App. E.D. 1987) (holding that 

the burden to prove invalidity effecting enforceability of a release shifts to the party 

opposing the defense). 

The Respondents correctly argue that once Big Lake admitted execution of the 

permits, and thus of the release, the burden shifted to Big Lake to "prove some invalidity 

in the release."  Jenkins, 472 S.W.2d at 420.  Big Lake argued in its response to the 

motion for summary judgment that the release was facially invalid pursuant to Alack 

because it released future negligence without express reference to same, and it released 

future intentional torts and gross negligence.  Unlike scenarios where fraud, mistake, 

unfair dealing, or other similar defenses to enforcement of a release are alleged, Big 

Lake's assertion of legal invalidity was established without the requirement of further 

evidence.  Cf. Landmark North County Bank & Trust Co., 738 S.W.2d at 890 (holding 

that bank president's bare allegations that release was invalid because it was induced by 

fraudulent misrepresentation and duress would not defeat summary judgment in absence 

of facts in dispute that would establish these claims).     

Once Big Lake "prove[d] some invalidity in the release," Jenkins, 472 S.W.2d at 

420, we conclude that the burden shifted back to the Respondents to prove that the 

release fell within the exception for contracts between "sophisticated parties."  Where 

established precedent renders the terms of a contract facially invalid, logic dictates that 

the burden to salvage the contract must rest with the party seeking its enforcement.   

17 

 The Respondents have not met this burden, and have thus failed to establish a right 

to summary judgment as a matter of law.  In the suggestions in support of their motion 

for summary judgment, the Respondents summarily stated that "the Pipeline Permits 

were negotiated between two sophisticated parties."  Though no Missouri court has 

declared the subject of this statement to be a question of fact, we believe the proposition 

to be self-evident.  In Purcell, the Supreme Court went to great lengths to set forth the 

apparently uncontroverted credentials of the parties before concluding that the parties 

were sophisticated businesses in the "type of transaction"8 involved in the case.  59 

S.W.3d at 510-11 (emphasis added).9  Similarly, in Caballero v. Stafford, 202 S.W.3d 

683, 695 n.2 (Mo. App. S.D. 2006), the Southern District reversed a trial court's 

determination that Alack did not apply to the release provision at issue because "we can 

find nothing in the record supporting the proposition that Caballero is a sophisticated 

commercial entity."  Other jurisdictions have expressly held that the level of 

sophistication of a party is question of fact, not a question of law.  See First Midwest 

Bank, N.A. v. Stewart Title Guar. Co., 823 N.E.2d 168, 181 (Ill. App. 2005) ("[T]he 

plaintiff's level of sophistication . . . [is a] question[] of fact for the trier of fact to 

determine."); Appletree Square I Ltd. Partnership v. Investmark, Inc., 494 N.W.2d 889, 

                                            8The Supreme Court's reference to the "type of transaction" as relevant in determining sophistication of the 

parties to a contract suggests that a person or entity may be "sophisticated" in one contract negotiation, but not in 

another.  Thus, it is not merely the characterization of a contracting party as a business, commercial entity or 

governmental entity that disposes of the question of sophistication.  Rather, all relevant facts must be considered, 

including the party's relative bargaining power and experience in the subject matter of the contract.  9In the face of uncontroverted facts as to the sophistication of the entities involved, we understand the 

corresponding conclusion of the Supreme Court that the parties before it were "sophisticated."  "A question of fact 

exists only when fair-minded people, exercising reasonable judgment, could reach different conclusions on the issue 

in controversy.  When reasonable minds could not differ, summary judgment is properly granted."  Binkley v. 

Palmer, 10 S.W.3d 166, 171 (Mo. App. E.D. 1999) (citations omitted).  Here, as we explain in our ruling, the 

"sophistication" of the parties is not at all uncontroverted, materially distinguishing the present case from the 

undisputed facts of Purcell on that topic." 

18 

894 (Minn. App. 1993) ("The unique qualifications of the buyers and sellers in this case 

create questions of fact regarding the relative sophistication of the parties.  The fact-

finder must weight this evidence to determine whether the buyers' reliance on disclosures 

was reasonable."); McGeorge v. Van Benschoten, 1988 WL 163063 *7, No. Civ. 87-1050 

PHX CAM) (D. Ariz. Dec.8, 1988) (not reported in F. Supp.) (the party's lack of 

sophistication raises a question of fact precluding judgment as a matter of law).  See also 

Meredith R. Miller, Contract Law, Party Sophistication and the New Formalism, 75 Mo. 

L. Review 493, 494-96, 520 (2010) (examining the need for courts to define 

sophistication; noting that the extensive contract treatises of Williston, Corbin and 

Farnsworth do not clarify what is meant by the term; and argues that because the level of 

sophistication is treated as a question of fact, a "more exacting analysis (rather than 

unstated presumptions)" would provide better results; "the court should apply a rigorous 

fact-driven analysis to determine whether assignment of the sophistication label is 

appropriate.")10

Here, the uncontroverted facts in Respondents' summary judgment motion are 

devoid of any facts from which the trial court could have concluded as a matter of law 

that the pipeline permits were negotiated at arm's length between business or commercial 

entities of equal power and sophistication in such transactions.  The Respondents' 

uncontroverted facts state only that Big Lake is "a Missouri municipality."  The 

Respondents cite to no authority suggesting that this admitted fact supports the 

10This article lists a series of cases where government or quasi-public entities were treated as sophisticated 

parties.  However those cases do not reflect the facts the courts relied on in making their determinations, and do not 

hold that governmental entities are sophisticated parties to a contract as a matter of law.  75 Mo. L. Review at 523 

n.169. 

19 

conclusion as a matter of law that the pipeline permits were negotiated between parties 

sophisticated in such transactions.11

"'The movant bears the burden of establishing both a legal right to judgment and 

the absence of any genuine issue of material fact required to support the claimed right to 

judgment.'"  Dilley, 401 S.W.3d at 550 (quoting Kinnaman-Carson v. Westport Ins. 

Corp., 283 S.W.3d 761, 765 (Mo. banc 2009)).  "The defendant establishes the right to 

judgment as a matter of law by showing . . . facts necessary to support his properly 

pleaded affirmative defense."  Jordan, 409 S.W.3d at 557.  A motion for summary 

judgment must be denied if the factual assertions are insufficient to entitle the movant to 

judgment as a matter of law.  Id.  The Respondents have not established that Big Lake 

was a sophisticated party in connection with the negotiation and execution of the permits, 

and thus has not established all facts essential to their right to judgment on the affirmative 

defense of release as a matter of law.12

  Jordan, 409 S.W.3d at 557.   

                                            11

Big Lake responded to the bare assertion in the respondents' suggestions by summarily arguing that it was 

not a sophisticated party.  Big Lake was not required to set forth issues of material fact in genuine dispute in the 

manner required by Rule 74.04(c)(2) to contest a subject not fairly raised in the Respondents' uncontroverted facts 

and as to which Big Lake did not bear the burden of proof.    12

Big Lake also argued to the trial court that the release clause in paragraph 7 of the permits is ambiguous 

because it releases Burlington for damages to "said Facility" or "other property" belonging to Big Lake "on or near 

Burlington's premises."  Big Lake argued that it is unclear whether the damaged fire hydrant and the five breaks in 

the water line are damages to "said Facility," or "on or near Burlington's premises," particularly in light of its 

allegations that the damages occurred some distance from BNSF's tracks.  The uncontroverted facts in the 

Respondents' motion did not identify the "premises" covered by the permits, and do not address where the damages 

occurred in relation to those "premises" consistent with the intent of the parties to the permits.  We express no 

opinion on this point other than to note that the discussion suggests another obstacle to the entry of summary 

judgment as a matter of law on the affirmative defense of release.  See Alack, 923 S.W.2d at 334 ("[C]ontracts 

exonerating a party from future acts of negligence are to be 'strictly construed against the party claiming the benefit 

of the contract, and clear and explicit language in the contract is required to absolve a person.'") (citation omitted).  

The Respondents have the burden to establish that the paragraph 7 of the permits includes within its scope damages 

to the water line and the fire hydrant given the alleged location of the damages in relation to BNSF's tracks, and the 

definition of "Facility" in the permits.  See Woodford, 518 S.W.2d at 716 (holding that it is a material element of the 

affirmative defense of release to establish that "the release covers the injuries that plaintiff is now suing for").    

Similarly, the release clause in paragraph 7 "releases and discharges Burlington."  Big Lake admitted as an 

uncontroverted fact that BNSF is the successor to Burlington.  However, the uncontroverted facts do not address 

20 

 Point one is granted, requiring reversal of the trial court's entry of summary 

judgment.  As a result, we need not address whether this release can permissibly operate 

to release Big Lake's claims of trespass and gross negligence, the subjects of Big Lake's 

second and third points relied on.13

  Nor are we required to address whether the 

Respondents permissibly raised the affirmative defense of release in a motion for 

summary judgment filed in lieu of an answer to the petition, the subject of Big Lake's 

fourth point relied on.      

Conclusion 

 We reverse the trial court's entry of summary judgment and remand this matter to 

the trial court for further proceedings consistent with this Opinion. 

__________________________________ 

      Cynthia L. Martin, Judge 

All concur 

                                                                                                                                             how or why Massman is covered by the release clause.  BNSF argued to the trial court that the "all caps" language in 

paragraph 7 (what we refer to in this Opinion as clause 5) extends the scope of the release clause to Massman 

because it refers to Burlington's agents.  We have explained, however, that clause 5 in paragraph 7 of the permits 

applies only to Big Lake's indemnity obligations, and not to the release clause.  It will thus remain the Respondents' 

obligation on remand to establish that Massman is covered by the release clause.  See Alack, 923 S.W.2d at 334 ("It 

is a 'well-established rule of construction that a contract provision exempting one from liability for his or her 

negligence will never be implied but must be clearly and explicitly stated.'") (citation omitted); State ex rel. 

Normandy Orthopedics, Inc., 581 S.W.2d at 834 (holding wrongdoer must establish he is within the intended scope 

of a release where he is not expressly named). 13

See footnote number 7.