Admiralty Law Supports Liability Waiver in New Jersey Parasail Case

By Doyice Cotten

p1010058The Olmos and their two sons signed up for a parasailing trip. While on the boat traveling out of the inlet, Dina Olmo shifted her sitting position just as the boat hit a wave, lifting her into the air. When she landed she felt “a stabbing pain at the bottom of [her] back.”The boat immediately returned to the dock and she was taken to the hospital. The two sons remained to continue with their parasailing trip. Her injury proved serious and she ultimately filed suit against the parasail company (Olmos v. Atlantic City Parasail, LLC., 2016).

Prior to the trip Dina had signed a document entitled “Parasailing Release of Liability, Waiver of Claims, Express Assumption of Risk and Indemnity Agreement.” The waiver read in part:

I, Dina Olmo, do hereby affirm and acknowledge that I have been fully informed of the inherent hazards and risks associated with Parasailing, water transportation to and from the parasail vessel and other such related water sport activities to which I am about to engage, including but not limited to:

1) changing water flow, tides, currents, wave action and ship’s wakes;

2) collision with any of the following: a) other participants, b) the watercraft, c) other watercraft, d) man made or natural objects, e) shuttle boat;

.Release of Liability, Waiver of Claims and Indemnity Agreement

In consideration of being allowed to participate in the above described Watersports, transportation, and parasailing activities,  as well as the use of the facilities, specifically including water transportation (shuttle boat) to and from the parasail vessel and sue [sic] of the equipment of the below [named — illegible]4 releasees, I hereby agree as follows:

1) To waive and release any and all claims based upon negligence, active or passive, with the exception of intentional, wanton, or willful misconduct that I may have in the future against . . . the following named persons or entities herein referred to as releasees: Capt. Eric Redner [and] Atlantic City Parasail

2) To release the releasees, their officers, directors, employees, representatives, agents, and volunteers, and vessels from liability and responsibility whatsoever and for any claims or causes of action that I, my estate, heirs, executors, or assigns may have for personal injury, property damage, or wrongful death arising from the above activities whether caused by active or passive negligence of the releasees or otherwise, with the exception of gross negligence. By executing this document I agree to hold the releasees harmless and indemnify them in conjunction with any injury or loss of life that may occur as a result of engaging in the above activities.

3) By entering into this Agreement, I am not relying on any oral or written representation or statements made by the releasees, other than what is set forth in this Agreement.

She signed the document at the bottom signifying that “I have read this Agreement, understand it, and I agree to be bound by it.”

In her suit, Olmo claimed negligence and recklessness on the part of Atlantic. It was determined that the injury occurred in a boat in navigable waters and, as such, bore a significant relationship to admiralty activity. Hence, admiralty law applies. It was noted, however, that there was no significant difference between admiralty law and New Jersey law.

Admiralty law requires that an enforceable waiver must be “(1) clear and unambiguous; (2) not inconsistent with public policy; and (3) not an adhesion contract.” Similarly, New Jersey law provides (1) the clause must be clear and unambiguous, (2) waivers of ordinary negligence are not against public policy, and (3) waivers based on unequal bargaining power (adhesion or unconscionability) are unenforceable.

Three issues were examined in detail. First, Olmo claimed she thought the waiver applied only to parasailing and not the boat ride. The risks of water transportation were clearly listed in the waiver. Second, Olmo claimed the waiver was against public policy. The court ruled that admiralty law clearly supports waivers of negligence and, as to the recklessness claim, there was no evidence supporting the claim. Third, Olmo claimed the waiver was a contract of adhesion. The court rejected the argument citing admiralty court rulings that “liability waivers for voluntary recreational activities are not adhesive contracts.”

The court granted Atlantic City Parasail’s motion for summary judgment.