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Waivers & Non-Readers: Another Factor to Think About!

By Doyice Cotten

250510822_ac46c0f229_zThe author has written about some of the problems with having non-readers sign a waiver.  There can be problems whether the person is simply illiterate or does not speak and read English. Some courts have ruled that one is responsible for what one signs and have enforced waivers signed by non readers.

For instance, an Iowa court (Adams v. Frieden, Inc., 2002) ruled against a legally blind woman who had sued challenging a waiver protecting against liability for injuries incurred in the pit area of an auto racetrack The court stated that the state supreme court had not carved out a disability exception to the rule that people are bound by documents they sign even if they have not read them.

In contrast, in Jimenez v. 24 Hour Fitness USA, Inc. (2015), the California health club discovered that the provider is on safer ground if they make sure the non-reader understands what he or she is signing. The employee failed to call for a Spanish-speaking employee to assist even though this was his usual policy. The court ruled that non-verbal gestures could be considered affirmative misrepresentation when parties did not speak the same language. The court felt that reasonable persons could find that the employee’s actions constituted fraud and misrepresentation; thus this created a fact issue and should be determined by the jury. The court reversed the trial court summary judgment ruling and remanded it for trial.

The Cruz Case

In Cruz v. Atco Raceway, Inc. (2015), the husband, Jose Cruz, died as a result of a drag racing crash. One of the issues in the case was the enforceability of the waiver produced by the raceway. It was questioned because it was not dated (important because Jose had raced at the raceway on prior dates) and the fact that the wife said Jose did not sign the waiver – in fact, the wife claimed that she signed the waiver because her husband was illiterate.

The New Jersey court explained that even if Evelyn Cruz signed the waiver on behalf of her husband, there is no evidence that she read the document to him or that he affirmatively indicated that he agreed to the terms of the waiver.

As a consequence, the court denied summary judgment in favor of the defendant and sent the case to trial for a ruling on the disputed facts.

Recommendation

Service providers need to develop policies with regard to persons with reading disabilities – whether in the case of illiterates or non-readers/speakers of English. While some courts still will rule that one is responsible for what he or she signs, other courts require some evidence that the signer understood the impact of the document.

It would seem to be good policy to have personnel on hand to explain the waiver clearly and be sure the releasing party understands the effect of the document. If the patron does not read or speak English and you have no person on hand that speaks the client’s language, have an English speaking friend of the client (if there is one) explain it to them in the presence of the employee. In the case of one party signing for another, as in the Cruz case, the use of a witness (who can testify that the document was explained and the client seemed to understand and agree to it) might be helpful.

 

Photo Credit: Thanks to Tirebiterz  at Flickr.

 

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