Ito v. Macro Energy Inc.

Ito v. Macro Energy, Inc., 4 N.M.I. 46 (1993) Ryoko Ito, as Personal Representative of the Heirs of Akinobu Ito, Deceased, Plaintiff/Appellee/Cross-Appellant, v. Macro Energy, Inc., Marianas Ocean Enterprises, Nobuo Hirai, Shigemi Yamagishi, American Home Assurance Company, Defendants/ Appellants/Cross-Appellees. Appeal Nos. 92-020 & 92-022 Civil Action No. 89-0918 October 26, 1993 Argued and Subm itted M arch 15, 1993 Counsel for appellee/cross-appellant Ryoko Ito: W illiam M . Fitzgerald, Saipan. Counsel for appellant/cross-appellee Nobuo Hirai: Harold A. Stone and Francis M . M cKeown, San Francisco, California (Gudm undson, Siggins, Stone & Skinner); Vicente T. Salas, Saipan (Salas & M anibusan). Counsel for appellants/cross-appellees M acro Energy, Inc., and Shigem i Yam agishi: Charles A. Lynberg and Randall J. Peters, Los Angeles, California (Lynberg & W atkins); James E. Hollm an, Saipan. Counsel for appellant/cross-appellee Shigemi Yamagishi for insurance m atters: James H. Grizzard, Saipan. Counsel for appellant/cross-appellee M arianas Ocean Enterprises: Lecia M . Eason, Saipan (W iseman, Eason & Halsell). Counsel for appellant/cross-appellee Am erican Hom e Assurance Com pany: Randall Todd Thom pson, Guam (M air, M air, Spade & Thom pson); M ichael A. W hite, Saipan (W hite, Novo-Gradac & M anglona). BEFO RE: DELA CRUZ, Chief Justice, VILLAGOM EZ, Justice, and CRUZ, Special Judge. DELA CRUZ, Chief Justice: This consolidated appeal involves several issues arising from the plaintiff’s wrongful death suit as personal representative for the heirs of the decedent, M r. Akinobu Ito. Ito drowned while on a scuba diving trip supervised by the defendants. On the day of his death, Ito signed an “AGREEM ENT FOR EXEM PTION FROM OBLIGATION.” The trial court ruled on a pre-trial motion that the release exonerated defendants M acro Energy, Inc. (“M acro”) and M arianas Ocean Enterprises (“M OE”), but not defendants Yamagishi and Hirai. After a two-week trial, the trial court found that Yamagishi and Hirai’s negligence was a proxim ate cause of Ito’s death, and entered judgm ent for the plaintiff. The threshold issue on this appeal is whether the release exonerates any of the defendants for their negligence. The plaintiff and the defendants also raise several other issues on appeal, including one involving the coverage liability of defendant Am erican Hom e Assurance Com pany. W e hold that the release does not exonerate any defendant because, as drafted, it does not com ply with R ESTATEM ENT (S EC ON D ) O F T OR TS § 496B (1965), the applicable rule in the Com m onwealth governing express assum ption of risk. W e therefore go on to address the other issues raised by the parties. I. PROCEDURAL HISTORY This lawsuit was filed by Ryoko Ito (“plaintiff”), as personal representative of the heirs of her deceased husband, Akinobu Ito (“Ito”).1 Ito drowned on Septem ber 24, 1988, during a scuba diving accident at Saipan’s “Grotto.” The other parties in this lawsuit are as follows: M acro Energy, Inc. (“M acro”), the Saipan-based scuba diving com pany that trained Ito to dive in June of 1988 and to which he returned on September 24, 1988. M arianas Ocean Enterprises (“M OE”)— alleged to be the “alter ego” of M acro. Shigem i Yam agishi (“Yam agishi”)— diving instructor and M acro’s president. Nobuo Hirai (“Hirai”)— assistant instructor em ployed by M acro. Am erican Hom e Assurance Com pany (“Am erican Hom e”)— M acro and Yam agishi’s insurer during all relevant dates. 2 The plaintiff’s com plaint contained four causes of action relating to: (1) negligent instruction by defendants in the June 1988 scuba diving course; (2) negligence of defendants on the day of Ito’s death, September 24, 1988; (3) coverage under the Am erican Hom e insurance policy 3 and (4) M OE’s alter-ego relationship with M acro. On November 7, 1990, M acro, Am erican Hom e, Yamagishi, and Hirai moved for summ ary judgm ent under R ESTATEM ENT (S EC ON D ) O F T OR TS § 496B (1965), based on the “AGREEM ENT FOR EXEM PTION FROM OBLIGATION” (hereinafter “release agreem ent” or “release”) which Ito signed on the morning of his accident. The trial court granted the m otion as to all four movants on December 17, 1990. On December 27, 1990, the plaintiff m oved for reconsideration of the order granting sum mary judgm ent. On January 21, 1991, the trial court heard oral argum ent on the plaintiff’s motion for reconsideration, and, on January 28, 1991, entered an “Am ended Sum m ary Judgm ent” and “M em orandum Decision” which held that Yam agishi and Hirai were not released from liability. 4 The trial court also ruled that, although M OE was not a m ovant, “[s]ince the complaint included M OE as a defendant based upon the theory that it was the alter ego of M acro, the grant of sum m ary judgm ent does run in favor of M OE.” Ito v. Macro Energy, Inc., Civ. No. 89-0918 (N.M .I. Super. Ct. Jan. 28, 1991) (M em orandum Decision at 4). Therefore, after January 28, 1990, the plaintiff’s 1 The CNMI’s wrongful death statute is found at 7 CMC § 2101. Subsection (a) provides, in part: W hen the death of a person is caused by [a] wrongful act, neglect or default such as would have entitled the party injured to maintain an action and recover damages in respect thereof if death had not ensued, the person or corporation which would have been liable if death had not ensued . . . is liable to an action for damages notwithstanding the death of the person injured . . . . 2 American Home Assurance Company was named as “American Home Insurance Company” in the plaintiff’s complaint. American Home Assurance Company appeared and litigated this action despite the defect. Accordingly, we have corrected its name in the caption of this decision. 3 The plaintiff brings this suit against American Home pursuant to the Commonwealth’s “direct action” statute. 4 CMC § 7502(e). 4 The trial court’s amended summary judgment does not state why the trial court changed course. The court wrote: “[U]pon further review of the Exemption Agreement, the court finds that its coverage does not extend to defendants Hirai and Yamagishi individually.” Ito v. Macro Energy, Inc., Civ. No. 89-0918 (N.M.I. Super. Ct. Jan. 28, 1991) (Memorandum Decision at 4). Defendants Yamagishi and Hirai contend on appeal that the trial court amended its order because they were not specifically mentioned in the release.  Ito v. Macro Energy, Inc., 4 N.M.I. 46 (1993) case stood only against defendants Am erican Hom e, Yam agishi and Hirai. On April 16, 1991, after a hearing on a motion for sum m ary judgm ent brought by Am erican Hom e, the trial court ruled that Am erican Hom e’s liability coverage was lim ited to $100,000. It also ruled that the plaintiff had waived her claim for loss of consortium . See Ito v. Macro Energy, Inc., Civ. No. 89-0918 (N.M .I. Super. Ct. Apr. 16, 1991) (M em orandum Opinion). Thereafter, in September 1991, Am erican Hom e, Yamagishi and Hirai moved, pursuant to Com . R. Civ. P. 54(b), for certification of (1) the trial court’s January 28, 1991, judgm ent regarding the release and (2) the trial court’s April 16, 1991, order regarding the policy lim its and the plaintiff’s claim for loss of consortium . W e dism issed these appeals because they were not final within the meaning of Com . R. Civ. P. 54(b). See Ito v. Macro Energy, Inc., 2 N.M .I. 459 (1992). A two-week trial was held between M ay 26, 1992, and June 5, 1992, after which the trial court entered judgm ent in the amount of $2,434,857.55 against Hirai, Yamagishi and Am erican Hom e. On August 10, 1992, after motion by Am erican Hom e, the court issued an amended judgm ent lim iting Am erican Hom e’s liability for damages to $100,000. Yam agishi and Hirai timely filed a joint notice of appeal on August 14, 1992. The plaintiff also tim ely appealed on August 21, 1992. W e consolidated the two appeals on Septem ber 22, 1992. Other procedural m atters of this case are set forth where pertinent, below. II. FACTS The following seventy-three points of fact are taken verbatim from the trial court’s Findings of Fact and Conclusions of Law, Ito v. Macro Energy, Inc., Civ. No. 89-0918 (N.M .I. Super. Ct. June 22, 1992) (hereinafter “Findings of Fact”). 5 1. In June of 1988, the decedent, Akinobu Ito (“Ito”) with Yosuhiro Fujitom i (“Fujitom i”) enrolled in a scuba diving course offered by M ACRO Energy, Inc. [”M acro”] in Saipan. 2. Shige Yam agishi (“Yam agishi”) is a shareholder and a director of [M acro]. 3. Yam agishi is the diving instructor of [M acro]. 4. Ito enrolled in the scuba diving course so that he [could] obtain[] certification as an open water diver. 5. The course [M acro] offered Ito, require[d] minim al pre-dive instruction and training. There was no pool or confined water training. W ritten student testing consisted of requests for student/volunteers to answer questions orally whether the students answ ered the questions correctly or not the instructor revealed the answ er to the students who filled in the answers on their book. W ater instructions took place inside the Grotto.6 6. Upon the com pletion of Ito’s scuba diving course, Yam agishi signed a certification card certifying Ito as an ADS open water diver. ADS is a Japanese scuba diving agency that issues a card certifying a diver as an open water diver. 7. Yamagishi signed a certification card certifying Ito as a CM AS one-star diver. CM AS is a French agency which is internationally recognized around the world and issues a card certifying a diver as a CM AS one- 5 Defendants do not directly challenge the trial court’s factual findings except to argue that (1) the trial court applied a wrong standard of care in evaluating their dive course and supervision, and (2) the trial court’s damage award was excessive and clearly erroneous. These issues are discussed below. 6 The Grotto is a sometimes turbulent pool of water surrounded on three sides by a natural rock formation. It contains three underwater outlets through which a diver can swim into the Pacific Ocean. These outlets differ in length and width. The north entrance requires a diver to go fifteen feet underwater and swim under an overhead rock formation for another ten to fifteen feet. This outlet is very simple to dive. It was revealed at trial that on a calm day, a strong swimmer can “free dive” under the rock formation and out to the ocean quickly without the assistance of an underwater breathing apparatus. This was not the hole used by the divers in this case. The hole that was used was the center hole. This hole is approximately twenty meters [65.6 feet] underwater and is approximately 120 feet in length. star diver. 8. Although Yamagishi signed the ADS and CM AS certification for Ito, he never personally instructed Ito in the class or in the water instruction in the Grotto. 9. Open water diver is a term recognized as being required in any certification course issued by various agencies. Various agencies around the world certify people as scuba divers under standards established for their respective agencies. 10. The course that Ito and Fujitom i attended to receive their open water diver certification did not meet the m inim um standards. 11. CM AS has specific standards which describe the knowledge and skills required in order for a diver to be granted a CM AS one-star diver certificate. 12. CM AS has a diver training program which indicates the current standard of training necessary in order to reach the m inim um level of proficiency required for the award of a CM AS one-star diver certificate. 13. The course that Ito attended to receive his open water certification did not meet the standards or follow the training program required by CM AS. 14. Yamagishi did not exercise reasonable care as a scuba instructor in certifying Ito as an open water diver and a CM AS one star diver. 15. The following is a partial list of the deficiencies of the course that Ito took before Yamagishi issued the two certification cards: (a) Unqualified persons were employed as instructors. (b) Students were not given textbooks. (c) Ito was not given tim e to study for a theory test. (d) Ito was not given a form al test that would require him to prove m astery of scuba diving theory. (e) No accurate records exist of by whom or what Ito was taught. (f) No accurate records exist to prove that Ito dem onstrated his mastery of the required scuba diving skills to a qualified instructor. (g) No record exists to prove that Ito was taught scuba diving theory by a qualified instructor. (h) Ito was taught a major part of the course by Aline Bouhey who was not a qualified instructor at the tim e. (i) The only records that do exist were fabricated by Shige Yamagishi after Akinobu Ito was dead. (j) The confined water training was done at the Grotto which is not an appropriate place to learn the necessary skills. (k) Open water dive training was virtually non-existent and provided no opportunity to practice skills during supervised ocean dives. (l) Octopus breathing was not taught. (m ) The num ber of exposures to each skill was not enough to learn the skill. (n) Ito was not taught rescue techniques. 16. Yamagishi deceived Ito into believing that he was receiving the legitim ate CM AS one star course and a legitim ate open water diver course. 17. Ito was not aware of all the risks of scuba diving as a legitim ate CM AS one star diver and an open water diver would be because he had not been properly trained. 18. Failure to receive the proper training in the scuba diving course that Ito took in June, 1988 was a proxim ate cause of Ito’s death [on] September 24, 1988. 19. In September, Ito returned to Saipan to go scuba diving. 20. On September 24, 1988, Ito paid for the services of a dive guide because he did not want to dive unsupervised. 21. Shige Yamagishi and Nobuo Hirai were aware that Akinobu Ito was a CM AS one star diver, and that he had had only one ocean dive outside of the inner pool of the Grotto. 22. Yamagishi and Hirai knew that the dive that they planned to take Ito, along with fourteen other people, on[] that day was a deep dive and that Ito had never dove deeper than [thirty] feet. 23. Yamagishi and Hirai knew that divers m ust be closely supervised on their first deep dive. 24. A dive of more than 100 feet is a deep dive. 25. Yamagishi and Hirai undertook to render the service of dive guide and dive supervisor of Akinobu Ito. 26. Yamagishi and Hirai failed to exercise reasonable care in the perform ance of supervising the dive. 27. Yamagishi was a shareholder and officer of the company that provided the scuba diving equipm ent  Ito v. Macro Energy, Inc., 4 N.M.I. 46 (1993) and was responsible for its proper maintenance. 28. The regulator given to Ito leaked air which may have caused air to be used faster than norm al. 29. The pressure gauge of the regulator given to Ito read 130 psi higher than was actually in the tank, so if the gauge read 400 psi, it actually only had 270 psi in the tank. 30. Yam agishi and Hirai failed prior to the dive to fam iliarize them selves with the divers under their charge and their respective abilities. 31. Yamagishi and Hirai failed to discuss with Ito the special circumstances of a dive to more than 100 feet, including the m ore rapid exhaustion of air and nitrogen narcosis. 32. At the site of the Grotto, Yam agishi and Hirai failed to give an adequate dive briefing and failed to check Ito’s equipm ent. 33. During the first half of the dive, Yam agishi was the only guide with fourteen divers. 34. Yamagishi led the dive to a depth of more than 100 feet[,] far beyond the training capabilities of Ito. 35. Scuba divers are required to dive with a partner termed a buddy; Fujitom i and Ito were buddies. 36. Fujitom i developed a problem with his air source and was assisted by Hirai and the two rose to the surface. 37. At the tim e that Fujitom i rose to the surface, Ito followed the correct procedure that he had been taught and followed his buddy Fujitom i to the surface. 38. At the tim e Ito, Fujitom i and Hirai rose to the surface, Yamagishi was at the m outh of the central entrance to the Grotto, with all the other divers between them . 39. At the tim e that Fujitom i rose to the surface Hirai failed to signal Yamagishi to halt the dive and Yam agishi failed to wait to resolve the problem . 40. W ith two divers on what he claims is the dangerous surface, Yam agishi, without determ ining their problem, turned and led the other divers back through the Grotto entrance and at no tim e after that did Yamagishi ever search for them . 41. At the tim e that Ito rose to the surface Hirai did not instruct him to im m ediately descend and join the other divers. 42. At the tim e that Ito rose to the surface Hirai did not check Ito’s remaining air supply. 43. Hirai directed Ito to follow him down and then chose the longest and deepest way to return to the surface inside the Grotto. 44. A much easier and safe alternative was available to Hirai by snorkeling on the surface with inflated BCD and then returning through the m uch m ore shallow and shorter northern entrance. 45. At the entrance to the tunnel to return to the inner Grotto, Hirai had 1500 psi of air, a very com fortable supply even for two people. 46. At the sam e point Ito had only between 400-500 psi, a questionable am ount, particularly because at readings of less than 500 the pressure gauges are not as accurate as they are at higher readings. 47. Instead of swim m ing normally holding on to Fujitom i and Ito, Hirai turned upside down and pulled himself along the roof of the center tunnel of the Grotto, with Fujitom i clutching his tank and he using his hands to pull him self along the roof. 48. Hirai’s goal seemed to be to arrive at the surface in the fastest tim e rather than in the safest way, yet there was no reason for his haste, since he had am ple air. 49. Hirai’s decision to pull him self along the roof prevented him from maintaining a clear view of Ito and keeping Ito close by holding onto Ito’s vest. 50. At som e point in the tunnel, Ito gave Hirai an out of air sign and Hirai gave him his octopus regulator. 51. Hirai did not hold Ito’s vest while Ito was using his regulator in violation of the standard procedure that he had learned in his training. 52. Hirai continued his unreasonable crawl along the roof upside down, instead of swimm ing norm ally to the surface while holding onto Ito and Fujitom i. 53. After discovering that Ito was not together with him when he surfaced, Hirai dove and brought Ito to the surface. 54. The m ost im portant thing to do for a subm ersion incident victim is to get the victim out of the water as quickly as possible.  55. Hirai and Yam agishi did not take Ito directly out of the water but attem pted for fifteen to twenty m inutes to resuscitate him in the water. 56. At this tim e one of the m embers of the dive group, a Dr. Takagi, surfaced and observed that Hirai and Yam agishi were supporting Ito on the surface and giving m outh to m outh resuscitation to him ; he noted the tim e as 10:46. 57. Takagi watched for three or four minutes and then went over to help, Yamagishi told him to take Ito’s pulse, and he did noting that the pulse was [sixty] and beating normally. Yam agishi told Takagi to make sure in taking the pulse. Ito vom ited water a num ber of tim es. 58. Thereafter at two to three minute intervals Takagi continued to take Ito’s pulse and it continued to beat at rate of about [forty/fifty] per minute. 59. Shortly after 11:00 the pulse rate became drastically weak and pinkish water started coming out of Ito’s mouth. 60. At 11:03 the pulse becam e [zero], and Yam agishi said to get him up, and other people then helped to get him up and out of the water, where heart massage was com m enced and m outh to mouth resuscitation continued. 61. At about 11:10 the ambulance arrived and they carried Ito away and he was pronounced dead on arrival at the Com m onwealth Health Center. 62. The appropriate treatment for either drowning or air em bolism is oxygen. Yam agishi and Hirai did not have oxygen at the Grotto. 63. Akinobu Ito’s cause of death was drowning. 64. Yamagishi and Hirai made statements to the police and other agencies im m ediately after the incident but did not mention seeing blood in the water. 65. Blood is a potential sym ptom of air em bolism but is seldom seen. 66. Air em bolism s occur because of a change in pressure upon ascent, and descent. 67. Pink froth is indicative of pulm onary edem a which results from the inhalation of water or other foreign matter to the lung. 68. The blood found in Ito’s stom ach resulted from his stom ach ulcer. 69. Hirai stated in a memorandum to the Japanese Consulate that at 11:05 Ito had a weak pulse. 70. At the tim e of his death Akinobu Ito was [forty-six] years old, gainfully em ployed by a major Japanese com pany, earning more than $60,000 a year. He expected to work for that sam e com pany or one of its subsidiaries until he was seventy years old. 71. Akinobu Ito is survived by a loving wife Ryoko and two children, Chiyo and M asteru. 72. The incom e that Akinobu Ito could have been expected to provide to his wife and children over his working life reduced to present value at an exchange rate of -126.78/$ is $2,389,857.55. 73. Funeral and burial expenses total $45,000. III. ISSUES PRESENTED AND STANDARDS OF REVIEW 1. The threshold issue on this appeal is whether Ito expressly assum ed the risk of harm arising from defendants’ negligence by signing the release, and, if so, which defendants are exonerated by operation of the release. The trial court interpreted the release as exonerating defendants M acro Energy and M OE and entered sum m ary judgm ent in their favor. W e review de novo the effect of the release on the question of liability. Rios v. Marianas Pub. Land Corp., 3 N.M .I. 512 (1993).7 2. W hether Ito impliedly assum ed the risks which led to the accident. 3. W hether Ito was contributorily negligent. 4. W hether the trial court applied an incorrect standard with respect to defendants’ duty of care. Issues two through four involve mixed questions of law and fact and therefore are reviewed de novo. Id. 7 In the trial court, the plaintiff and MOE briefed the issue of whether MOE was Macro’s “alter-ego.” However, “the issue was not resolved in the trial court. Instead, summary judgment proceedings commenced on the issue of the express release agreement.” See MOE’s Response Brief at x (footnote omitted). W e do not decide the alter-ego issue because it has not been raised in this appeal.  Ito v. Macro Energy, Inc., 4 N.M.I. 46 (1993) 5. W hether the trial court erred in failing to consider defendant Hirai’s m otion for sum m ary judgm ent to enforce a settlement agreement on the date set for trial. A trial court’s failure to rule on a motion is a denial thereof by operation of law and, in this case, im plicates the trial court’s power to control its docket. W e therefore review its ruling for abuse of discretion. Atchinson, Topeka & Santa Fe Ry. Co. v. Parr, 391 P.2d 575 (Ariz. 1964); Edwards v. Cass Cty., Tex., 919 F.2d 273 (5th Cir. 1990). 6. W hether the trial court erred in ruling that the plaintiff had waived her loss of consortium claim . The trial court found that the plaintiff’s counsel “adm itted” that the plaintiff had no claim for consortium on sum m ary judgm ent. Such ruling is a conclusion of law and is reviewable de novo. Rios, supra. 7. W hether the trial court erred in its calculation of dam ages and in not revealing its calculations in determ ining dam ages. Damage awards are reviewed under a “clearly erroneous standard.” Reyes v. Ebetuer, 2 N.M .I. 418 (1992). 8. W hether the trial court erred in ruling that Am erican Hom e’s coverage under the policy is limited to $100,000. The trial court’s interpretation of language in an insurance policy involves a question of law which is subject to de novo review. Tokio Marine & Fire Ins. Co., Ltd. v. Marianas Ocean Enters., Inc., 3 CR 748, 753 (D.N.M .I. App. Div. 1989). IV. ANALYSIS 1. Ito’s Express Assumption of the Risk The release which Ito signed before the diving accident and which is critical to this litigation states as follows: M ACRO ENERGY, INC. .... APPLICATION FOR PARTICIPATING IN SCUBA DIVING & INVO ICE .... (AGREEM ENT FOR EXEM PTION FROM OBLIGATION) I SUBM ITTED AN APPLICATION FOR PARTICIPATING IN THE DIVING TOUR AND OR TRAINING PROGRAM TO BE CO NDUCTED BY YOUR AGEN CY. I FULLY ACCEPT AND UNDERSTAND THAT SUCH A DIVING TOUR AND TRAINING INVOLVES BASIC RISK AND DANGER. IF W E FAIL TO ABIDE BY THE RULES AND REGULATION SET BY THE GUIDES AND INSTRUCTORS AND IF W E NEGLECT THE DIVING RULES, W E REALIZE THAT W E M AY RISK OUR LIVES. ALL THE RISKS THAT W E M AY HAVE DURING THE PERIOD OF STAY HERE BELONG TO EACH OF US PERSONALLY. IN CASE OF ACCIDENT, CAUSING INJURY OR DEATH TO M YSELF, I M YSELF, M Y FAM ILY, OR INHERITED ORGANIZATION AN D OTHER RELATED PERSONN EL SHALL HAVE NO RIGHT TO PROTEST AGAINST NOR TO CLAIM FOR DAM AGES. W E HEREBY SW EAR TO ABIDE BY AND ACT AT THE RULES AND INSTRUCTIONS SET BY THE GUIDES AND INSTRUCTORS. ALSO I AM FULLY A GROW N UP AT LAW AND I ACKNOW LEDGE THE FACT THAT I AM FULLY QUALIFIED TO SIGN THIS AGREEM ENT, TO VERIFY THE EXEM PTIONS FROM ALL THE CLAIM S FOR DAM AGES. ALL THE ITEM S IN THIS APPLICATION ARE TO BE DECIDED BY THE AGREEM ENT, AND I PERSONA LLY SIGN THIS DOCUM ENT AT M Y OW N W ILL  RATHER THAN SOM EONE DIRECTING M E TO SIGN THIS PAPER. The release also contained the above paragraph in Japanese.8 The release was signed by Ito and dated “9/24/88.” The trial court initially ruled that the release exonerated all defendants, but subsequently am ended its sum m ary judgm ent and ruled that the release did not exonerate defendants Yam agishi, the president of M acro Energy, and Hirai, an em ployee of M acro Energy. In the Com m onwealth, the rules of the com m on law as expressed in the Restatements of the Law as approved by the Am erican Law Institute serve as the applicable rules of decision, in the absence of written or local custom ary law to the contrary. 7 CM C § 3401. Because we have no statute or local custom ary law regarding express releases, R ESTATEM ENT (S EC ON D ) O F T OR TS § 496B (1965) (hereinafter “§ 496B”) is applicable. That section provides: “A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct cannot recover for such harm , unless the agreement is invalid as contrary to public policy.” There is no dispute that the release is either a “contract” or a docum ent by which Ito may have “otherwise expressly agree[d]” to assum e certain risks. There also is no dispute that Ito read and executed the release. The issue on appeal concerns the language of the release instrument, and whether that language, as a matter of law, exonerates defendants from their negligence. W e conclude that it does not. A. The Requirements of § 496B In order for a release to be valid and binding, it must com ply with the requirem ents of § 496B. In determ ining whether the release m eets the requirements of § 496B, we shall strictly construe the language of the release, Schutkowski v. Carey, 725 P.2d 1057, 1060 (W yo. 1986), especially where, as in this case, it is drafted by defendants and purports to exonerate them . Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989); see also § 496B cm t. d. By signing the release, Ito m ust have “expressly agree[d] to accept a risk of harm arising from the defendant[s’] negligent or reckless conduct.” (Em phasis added.) W e turn to the language of the release to determ ine what risks Ito “expressly” agreed to assum e. In doing so, we find no mention of Ito accepting a risk of harm arising from the “defendant[s’] negligent conduct.” The release contained no language that the risk of harm which Ito agreed to assum e was that harm which may have arisen due to defendants’ negligence. Although the release states that “ALL THE RISKS THAT W E M AY HAVE DURING THE PERIOD OF STAY HERE BELONG TO EACH OF US PERSONALLY” and that Ito (or his heirs) will not file suit “IN CASE OF ACCIDENT, CAUSING INJURY OR DEATH TO M YSELF,” it fails to m ention that the risks encom pass defendants’ negligence. The language of the release did not “expressly” warn or alert Ito that the risk of harm he was assum ing was one that could arise from defendants’ negligence. Absent clear language in the release itself, we are not persuaded, as a matter of law, that the release meets the requirem ents of § 496B: that Ito “expressly agree[d] to accept a risk of harm arising from the defendant[s’] negligent or reckless conduct.” “[A]lthough uniform ly agreeing that exculpatory agreem ents must be strictly construed against the drafter, [courts] are split on whether ‘negligence’ must be specifically mentioned [in a release], or whether m ore inclusive and general term s m ay be employed.” Heil Valley Ranch, Inc., 784 P.2d at 784 (footnote om itted). This split in authority regarding such a requirement appears to be based on the various jurisdictions’ public policy views pertaining to these types of releases, and how each views the im portance of the language of the release itself, i.e., whether the language is sufficiently clear so that the one signing it knows what is being given up. In the absence of legislation, the com m on law is developed based on the application of general notions of justice and fair play, taking into account the circumstances and experiences unique to a particular jurisdiction. Our jurisdiction is not vested with a sim ilar degree of freedom in form ulating our own com m on law as 8 The decedent apparently was proficient only in Japanese, and read the Japanese language version of the release before signing it. At oral argument, counsel for the plaintiff stated that only the English language version of the release has been the subject of dispute in this lawsuit. Defendants do not contend otherwise, nor do they assert that the Japanese version of the release contains language which in legal effect differs from the English version. Therefore, our decision is based solely on the English language version.  Ito v. Macro Energy, Inc., 4 N.M.I. 46 (1993) that exercised by courts in other jurisdictions, because of the statutory dictate that we apply the Restatem ent. 7 CM C § 3401. Thus, we must acknowledge the doctrine of express assum ption of risk as set forth in § 496B, which is part of our “rules of decision” in the Com m onwealth. Id. In interpreting § 496B, however, we shall side with those jurisdictions which take the m ore cautious approach with respect to express assum ption of risk. In doing so, we interpret § 496B as requiring that a release m ust expressly mention that the risks of harm being assum ed by a releasor include those arising from a releasee’s negligence or reckless conduct. Certain notable jurisdictions have taken this approach to releases. See Saenz v. Whitewater Voyages, Inc., 276 Cal. Rptr. 672 (Ct. App. 1990); Madison v. Superior Ct., 250 Cal. Rptr. 299 (Ct. App. 1988); O’Connell v. Walt Disney World Co., 413 So. 2d 444 (Fla. App. 1982); Goyings v. Jack and Ruth Eckerd Found., 403 So. 2d 1144 (Fla. App. 1981). In Madison, the court held that a release barred a plaintiff’s wrongful death action premised on the defendants’ negligence during a scuba-diving course. The release at issue in Madison, how ever, clearly stated that the releasor agreed not to sue if he suffered injury caused “by the negligence of” the releasees, and that the releasor agreed to “exem pt and relieve [releasees] from liability for personal injury, property dam age or wrongful death caused by negligence.” 250 Cal. Rptr. at 302 (quote in lower case). In upholding the release, the court wrote that “[a]s long as the release constitutes a clear and unequivocal waiver with specific reference to a defendant’s negligence, it will be sufficient.” Id. at 304 (em phasis added). Florida agrees with the California analysis. In Goyings, for exam ple, the court wrote, “an exculpatory clause, while not favored, may operate to absolve a defendant from liability arising out of his own negligent acts. For such a clause to be effective, however it must clearly state that it releases the party from liability for his own negligence.” 403 So. 2d at 1146. Under the language of the release signed by Ito, we are not satisfied that, in signing the release, he “expressly agree[d]” to accept the risks, arising from defendants’ negligence or reckless conduct, which caused his death. The release fails to set forth any express language as to defendants’ negligence. B. Applying a Less-Restrictive Standard under § 496B Som e state jurisdictions have held that a release need not contain specific reference that the releasor is to assum e the risk of harm arising from the releasee’s negligent or reckless conduct. Heil Valley Ranch, Inc., 784 P.2d at 784; Blide v. Rainier Mountaineering, Inc., 636 P.2d 492, 493 (W ash. App. 1981), review denied, 96 W ash. 2d 1027 (1982); Schutkowski, 725 P.2d at 1061. W here that is the case, how ever, the release must be “clear that the parties’ intent was to release [defendants] from liability for negligence.” Schutkowski, 725 P.2d at 1061. If we were to disregard a strict interpretation of the requirements of § 496B and apply Schutkowski’s less- restrictive standard to the release signed by Ito, the release would still not meet that standard because the only risks of harm which the release covered were those arising from Ito’s conduct, not the risk of harm arising from defendants’ negligence. The release alerted Ito that he could be injured if he failed “TO ABIDE BY THE RULES AND REGULATION SET BY THE GUIDES AND INSTRUCTORS,” or if he were to “NEGLECT THE DIVING RULES.” 9 W e fail to see how these warnings regarding injury arising from Ito’s failure to follow diving rules and regulations could be satisfactorily construed to mean that he intended “to release [defendants] from liability for [their] negligence.” Schutkowski, 725 P.2d at 1061. The release as drafted and signed by Ito sim ply was not “clear” regarding the parties’ intent. Thus, even if we read the release broadly, we still have difficulty construing the language of the release as containing an intent to absolve the releasees from their negligence. C. The Effect of Comment d 9 The trial court found that it was the defendants who did not abide by the rules of proper training, supervision and rescue. See Findings of Fact [hereinafter “Findings of Fact”] nos. 13-18, Ito v. Macro Energy, Inc., Civ. No. 89-0918 (N.M.I. Super Ct. June 22, 1992).  Yamagishi and Hirai contend that com m ent d to § 496B supports a ruling that the release exonerated them from liability. However, we are not convinced that if we apply the test im plicit in com m ent d we would reach a different result. Com m ent d provides that a “general clause[] . . . will not be construed to include loss or dam age resulting from [a defendant’s] intentional, negligent, or reckless misconduct unless the circumstances clearly indicate that such was the plaintiff’s understanding and intention.” (Em phasis added.) Thus, where a general clause is used in the release, as in this case, the rule is that courts may not construe it to release a defendant from liability unless “the circum stances clearly indicate that such was the plaintiff’s understanding and intention.” Here, again, the general clause released the defendants from liability if Ito’s death was caused by Ito’s (1) failure to abide by the rules and regulations set by the guides and instructors, and (2) neglect of diving rules. The general clause of the release provides: IN CASE OF ACCIDENT, CAUSING INJURY OR DEATH TO M YSELF, I M YSELF, M Y FAM ILY, OR INHERITED ORGANIZATION AN D OTHER RELATED PERSONN EL SHALL HAVE NO RIGHT TO PROTEST AGAINST NOR TO CLAIM FOR DAM AGES. This clause, when read together with the preceding sentences, does not “clearly indicate” that Ito understood or intended to release defendants from their negligence. For the reasons stated, even under com m ent d, we do not read the release’s “general clause” to exempt the negligent defendants from liability. D. The Release Failed to Exonerate the Defendants The release at issue in this case does not meet the requirem ents of § 496B. W e hold that a release, in order to be valid, at the very least must expressly m ention that the rele