By Doyice Cotten
Lisa Brown, a Florida resident, participated in a tube slide down a hill and was injured as she crossed other slide paths in returning from her slide. There was no other way to go. (Brown v. Town of Frisco, Colorado, 2023)
She filed a negligence suit against the facility owner. She alleged that employees were lackadaisical and careless. The defendant claimed protection from a waiver and forum selection clause allegedly signed by the plaintiff. Plaintiff does not challenge the document – she claims that she never signed it.
The waiver contains an illegible signature and the printed name says Lisa Brown. The defendant
“argues that Plaintiff’s counsel’s statement in the Response brief is not evidence, and that such a “bare-bones denial is nothing more than argument in a brief and is insufficient to create a factual issue as a matter of law.” (Lisa Brown v. Town of Frisco, Colorado, 2023)
Defendant states that “the liability waiver is prima facie evidence that [Plaintiff] signed the waiver, something that all guests must do.” He explained the steps the company went through with all guests to be sure the waiver was signed.
- “tells people in advance that no visitor is permitted to go down the tubing hill unless and until they sign a waiver.”
- Their webpage states “A participation waivermust be completed before you can tube. After you’ve made a reservation, click the button below to complete your participation waiver Please bring a valid ID with you to check in for your reservation.”).
- The assistant town manage testified that the town “has a strict policy of requiring guests to execute a liability waiver before they are permitted to use the Frisco Adventure Park Tubing Hill.”
- She further states that guests booking online have the option of completing an electronic waiverand verifying their identity by providing an email address.
- Then, a confirmation email is sent to the booking party, reminding them of the need to sign the waiver.
- Then, about a week before the reservation date, the booking party receives another email which, among other things, expressly reminds the guest of the requirement that all users must execute the liabilitywaiver.
- They stated that Guests who still arrive at Adventure Park without having signed an electronic waiverare required to sign a paper copy of the waiver
- No exceptions are made to the requirement that all guests sign a waiver are permitted.
Based on this testimony, the court found that the defendant had provided prima facie evidence the the plaintiff signed the agreement. The court stated that the plaintiff had failed to provide any evidence that she had not signed the document (in the form of affidavit, failure to file a surreply, or failure to ask for an evidentiary hearing), the court recommended that the defendant’s motion be granted and the case dismissed.
Risk Management Take-away
The management obviously took seriously the important of having everyone sign the waiver. There have been similar cases (usually with lost waivers) where a waiver was enforced when the company could show that care was ALWAYS taken to be sure a waiver was signed. So, make sure you have policies ensuring that the waiver is signed.
Photo Credit: Thanks to Keith Bellvay via Flickr.