By Doyice Cotten
This electronic waiver case was discussed briefly a couple of weeks ago. Here it is examined in more detail.
A frequent question is “Are electronic waivers as good as paper waivers?” or “Are electronic waivers enforceable?” The answer seems to be “yes” for both questions. The writer has read electronic waivers in several states and has yet to find one that fails because it is electronic; in fact, this issue is even questioned in very few.
That said, one is always safer to take steps to insure enforcement if the issue comes up, as it did in O’Connell v. Macy’s Corporate Services,Inc. (2016 N.Y. Misc. LEXIS 3284). Ms O’Connell wanted to work in the Macy’s Parade as a volunteer and was required to sign an online waiver. She was assigned to handle balloons and subsequently was injured when struck by an parade ATV following the balloon handlers. She claimed that she registered online but did not sign a waiver – in effect questioning her “signature” on the waiver.
Defendants submitted an affidavit to the court by Preeti Sharma, chief digital officer for DVG, the defendant’s information technology firm. Sharma testified
that there are several layers of security by which the application program records and preserves the electronic consent of every applicant to the Release, and by means of which Macy’s can verify that the Plaintiff electronically consented to the Release. Sharma stated that the user credentials that the Plaintiff entered at the log in to the Application were specific to the Plaintiff, consisting of an email address and a password defined by Macy’s.
Sharma explained that the registration process was a linear step by step through process, wherein the applicant cannot advance to the next page without first completing all required elements on each prior page. So, in effect, she made clear that it would be impossible for someone to register as a volunteer with having signed the liability waiver required in a previous step. The process was:
- the Release step/page is generic in nature, with a blank name field.
- the full text of the Release is prominently displayed on the applicant’s screen,
- there is a “bold headline” explicitly identifying the document as a “release”.
- in order for the applicant to proceed to the next step in the application, the applicant must first enter their name in the provided field of the Release
- and check a box confirming their understanding and acceptance of the terms as described in the Release.
- upon the applicant’s advance from the Release to the next screen, a PDF of the Release is generated and saved within the server’s file system.
Carolynn Castillo, the senior manager of event operations at the Macy’s Parade & Entertainment Group stated that
- she maintains true and accurate copies of all of the volunteer applicants’ Releases, including the Plaintiff’s Release, in her files in the ordinary course of business.
- immediately after the Parade, all releases from all registrants are provided to her from VGD, which maintains and preserves them in the ordinary course of business after each registrant’s electronic consent.
- VGD provided the releases labeled according to the applicant’s names,
- And she maintains the Releases in her office
- From which she retrieved the Plaintiff’s Release.
The court, to verify witness’s testimony, had Sharma supply screen shots of the entire registration process. From those, the court was able to verify that the plaintiff had indeed seen the waiver, signed it, and checked off that she “understood and accepted the terms in full.” The court also determined that the terms of the waiver were clear and unambiguous. It then dismissed plaintiff’s action and granted Macy’s motion for summary judgment.
New York Waiver Law
Pertinent New York law provides:
- In the absence of a contravening public policy, exculpatory provisions in a contract, purporting to insulate one of the parties from liability resulting from that party’s own negligence, although disfavored by the law and closely scrutinized by the courts, generally are enforced, subject however to various qualifications.
- Where the language of the exculpatory agreement expresses in unequivocal terms the intention of the parties to relieve a defendant of liability for the defendant’s negligence, the agreement will be enforced.
- Such an agreement will be viewed as wholly void, however, where it purports to grant exemption from liability for willful or grossly negligent acts or where a special relationship exists between the parties such that an overriding public interest demands that such a contract provision be rendered ineffectual.
- Further, [a]s a general matter,a party will not be excused from reading a document that he or she has signed, including a release from liability. As such a party who signed a release is presumed to have read the contents of said release.
New York Technology Law
Pertinent New York Technology Law § 302 (3) defines
- an “electronic signature” as “an electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record”.
- In addition, New York Technology Law § 304(2) states that “[i]n accordance with this section unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand.”
- The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand.
- Further, even where an electronic writing includes a printed name as opposed to an “electronic signature” as defined by the Electronic Signatures and Records Act, a printed name on an electronic document will be treated as a signature where the record supports the conclusion that the Plaintiff in effect signed the electronic document. Specifically, if there is some indication that the author purposefully added their name to the electronic document it can be treated as a consent.
Risk Management Take-Away
Today, electronic or online waivers seem to be as accepted as paper waivers; nevertheless, it would be wise to check the law in your state. The provider, however, should use a process by which it can show that the signer actually “signed” the electronic waiver. Macy’s was well-prepared. Be sure that you are.
Photo Credit: Thanks to S Pakhrin on Flickr.