By Doyice Cotten
Northwest Nazarene University required Morrison and some co-workers to participate in a “team building exercise” that included, among other things, a climbing wall activity. Morrison fell, was seriously injured, and sued alleging negligence (Morrison v. Northwest Nazarene University, 2012 Ida. LEXIS 82).
The university had required that all participants sign a waiver, an indemnity agreement and an assumption of risk agreement. Idaho law states “’Freedom of contract is a fundamental concept underlying the law of contracts and is an essential element of the free enterprise system.’ Agreements exempting a party from liability for negligence will be upheld unless . . . the other party is at an obvious disadvantage in bargaining power.”
Morrison contended that he was at an obvious disadvantage in bargaining power because he was required by his employer to sign the waiver. The court stated
The existence of unequal bargaining power is not, by itself, sufficient to relieve a party from the provisions of a hold harmless agreement. Rather, the party must be “compelled to submit to a provision relieving the other from liability for future negligence [because] . . . the party injured has little choice, as a practical matter, but to use the services offered by the party seeking exemption.” It is essentially the same test for determining whether unequal bargaining power between parties to a contract is sufficient to constitute procedural unconscionability. (“Lack of voluntariness can be shown . . . by great imbalance on the parties’ bargaining power with the stronger party’s terms being nonnegotiable and the weaker party being prevented by market factors, timing, or other pressures from being able to contract with another party on more favorable terms or to refrain from contracting at all.”)
Morrison stated in an affidavit that the employer told them they had to sign the waiver; all employees were expected to participate and he signed it. He felt he had no option but to sign it. The court said that there is no evidence he told his employer that he did not want to climb the wall and was ordered to do so anyway.
The court seemed to exhibit some naiveté in holding that the plaintiff failed to show the existence of unequal bargaining power.
Photo Credit: Thanks to Skippy at http://www.flickr.com/photos/skippy/114395044/sizes/s/in/photostream/