By Doyice Cotten
Richard Whitson rented an inflatable bounce house from the defendant, One Stop. Whitson had rented the house in the past.The bounce house weighs over 400 pounds and comes in a vinyl bag, uninflated. The bag has a strap on the bottom and a cinch strap at the top to keep the bag closed. Whitson watched employees load the house into the back of his truck (Whitson v. One Stop Rental Tool & Party, 2017 Ohio App. LEXIS 419).
When Whitson arrived home, he attempted to unload the bounce house from his truck by himself (in spite of the fact that there were a number of other adults at his house who could have assisted him). He tried to push it out of the truck; failing that, he tried to unload the house by pulling the bottom strap of the bag. The strap broke and Richard fell out of the back of his truck onto the ground and suffered injury.
The Whitsons filed suit against One Stop claiming, among other things, negligence by One Stop. One Stop claimed protection by the rental contract and a waiver signed by Whitson. One document stated
HOLD HARMLESS AGREEMENT. Customer agrees to assume the risks of, and hold Dealer harmless for, property damage and personal injuries, including death and dismemberment, caused by the equipment and/or arising out of Dealer’s negligence.
The other document, the Rental Agreement, Release, and Acknowledgment of Risks (Waiver) stated:
I understand and acknowledge that the activity to be engaged in through my rental of an inflatable, interactive amusement device, brings with it both known and unanticipated risks to guests, my invitees, and myself. Those risks include, but are not limited to fallings, slipping, crashing, and colliding and could result in injury, illness, disease, emotional distress, death and/or property damage to myself or my guests and invitees.
I voluntarily release, indemnify, hold harmless and discharge One Stop Tool Rental, Inc. from any and all liability claims, demands, actions or rights of actions, whether personal to me or to a third party which are related to[,] arise out of or are in any way connected with my rental of the unit, including those allegedly attribute[d] to negligent acts or omissions. I agree to reimburse any reasonable attorney’s fees and costs which may be incurred by One Stop Rental Tool Rental, Inc. in the defense of any such liability claim, demand, action or right of action.
Richard elected to not read either document, but voluntarily signed them.
The Whitson complaint against One Stop alleged claims of 1) negligence and loss of consortium and 2) punitive damages “for One Stop’s alleged malicious conduct in disregarding the probability Richard would be injured in the manner detailed above.” One Stop moved for summary judgment, arguing the Whitsons’ claims were barred by the waiver. In addition, One Stop argued Whitson “was not entitled to an award of punitive damages because One Stop did not act with actual malice.”
The trial court granted summary judgment to One Stop on both claims. The court noted that there was a question of negligence in that One Stop failed to notice a problem with the straps, but ruled that such negligence was protected by the waiver.
The court found that the waiver was clear and unambiguous. The customer agreed to assume the risks and waived liability for damage resulting from One Stop’s negligence. The waiver was clear and unambiguous, and was broad enough to include the risks involved in moving the bag and bounce house, removing same from the bag, inflation of the house, and the use thereof and the steps necessary in deflating it and returning it to the dealer.
Ohio law holds that waivers must be expressed in terms that are clear and unequivocal. The key determinant is stated as “[t]he pivotal inquiry is whether it is clear from the general terms of the entire contract, considered in light of what an ordinary prudent and knowledgeable party of the same class would understand, that the proprietor is to be relieved from liability for its own negligence.” Ohio courts generally enforce such waivers when the intent of the parties is clear and unambiguous.
The appellate court found that the trial court did not err in granting summary judgment on the two counts. Regarding the punitive damages claim, the court stated there was no evidence of actual malice.
Negligence was claimed by the plaintiff, but, due to the waiver, it was unnecessary to determine if One Stop was negligent because negligence was covered by the waiver. This is just one more case in which a liability waiver served to protect a service provider.
Photo Credit: Thanks to Stevan Sheets on Flickr.