Can One Spouse Sign the Waiver for the Other Spouse?

By Doyice Cotten

8873409242_bd91a3273a_zOften both a husband and a wife attend a sport, recreation, or fitness facility to participate. The business has a requirement that everyone signs a waiver before participating. Is there a problem if one of the couple signs his or her own waiver and then signs the waiver of the spouse?

In the 2017 case, Burns v. Parks (2017 Pa. Super. Unpub. LEXIS 4043), Joseph and Dawn Burns entered Sky Zone Indoor Trampoline Park to participate. Joseph went to the bathroom and Dawn went to a cubicle, filled out papers, and signed both her waiver and Joseph’s. While participating, Joseph caught his foot in the trampoline and broke his ankle. He filed suit and Sky Zone responded that the club was protected by Joseph’s waiver. Joseph argued that the waiver was not enforceable because he did not sign the waiver.

An Agency Relationship

Sky Zone argued that the plaintiff was bound by the waiver because Dawn was acting as his agent. In addressing the issue, the court cited a previous court; “Such a relationship cannot be inferred from mere relationship or family ties unattended by conditions, acts or conduct clearly implying an agency.” It explained that an agency relationship can be created by any of the following: (1) express authority, (2) implied authority, (3) apparent authority, and/or (4) authority by estoppel. It added that the party claiming agency bears the burden of proving it by a fair preponderance of the evidence.

The court stated that express authority exists “where the principal deliberately and specifically grants authority to the agent as to certain matters.” No evidence was presented showing that Dawn was expressly authorized to sign the waiver on Joseph’s behalf.

The court said that implied authority exists “in situations where the agent’s actions are ‘proper, usual and necessary’ to carry out express agency.” Sky Zone argued that Dawn had implied authority, as Joseph Burns’ wife, to enter the Agreement on his behalf, because she was normally in charge of registrations such as this.

Apparent authority exists “where the principal, by word or conduct, causes people with whom the alleged agent deals to believe that the principal has granted the agent authority to act.” Sky Zone went on to argue that Dawn had apparent authority to sign on Joseph’s behalf because they entered the facility together and Joseph went to use the restroom, in effect, leaving Dawn Burns to handle the paperwork alone.

Authority by estoppel occurs “when the principal (Joseph in this case) fails to take reasonable steps to disavow the third party (Sky Zone in this case) of their belief that the purported agent (Dawn here) was authorized to act on behalf of the principal. Sky Zone argues that Joseph was “intentionally careless in allowing [Sky Zone’s] employee to believe that Joseph Burns signed the Agreement and/or in allowing [Sky Zone’s] employee to believe that Dawn Burns had the authority to sign the Agreement on Joseph Burns’ behalf.”

Court Reasoning

The trial court reasoned that implied authority is an extension of express authority and since there is no evidence of express authority, there can be no implied authority. Further, his testimony was that she never filled out waivers for him, so she could have no implied authority. It stated that there could be no apparent authority because Sky Zone had no prior dealings with them and the employee did not know at that time that Dawn had signed for him. Joseph’s only dealing with Sky Zone was to ask where the bathroom was. The court explained that for purposes of agency by estoppel, Sky Zone had to show that Joseph knew or should have known that Dawn had signed the Agreement. Joseph testified in deposition that he did not know Dawn had signed a waiver until after his injury. He further testified that he was not aware that waivers needed to be signed for activities such as the trampoline park or that Dawn Burns had ever signed waivers on behalf of his children for activities akin to the trampoline park.

After careful review, the appellate court ruled that the trial court’s findings were substantially supported by the record. The trial court ruling was affirmed.

Conclusion

The court concluded that Dawn lacked authority to sign on Joseph’s behalf; hence, Joseph was not bound by the waiver agreement. If you do not agree with this ruling, don’t feel like the Lone Ranger. I am posting a dissenting view by one of the three judges on this case. It appears immediately following the photo credit.

Risk Management Take-Away

Management should establish a system or protocol that will ensure that ALL participants sign the waiver prior to participation.

Now, I know that many of my readers are not requiring both spouses to sign a waiver. I know some club require only the husband to sign the membership and waiver when a family is joining. Readers of this post may want to re-think this procedure.

One more thing, this case is a Pennsylvania case and applies Pennsylvania law. Investigate the law in your state.

Photo Credit: Thanks to Clintus via Flickr.

Dissent #1

DISSENTING MEMORANDUM BY BOWES, J.:

As I believe that the admissions of Appellants establish that agency by implication applies herein, I would enforce the participation agreement that Dawn Burns signed on behalf of her husband Joseph Burns and would remand this matter to arbitration.

On May 11, 2014, Joseph and Dawn Burns and their son Shamus, entered the Sky Zone Indoor Trampoline Park (“Sky Zone”), which is owned and operated by Philly Trampoline Parks Delco, LLC. Mr. Burns was [*15]  allegedly injured on a trampoline that day. In order to access Sky Zone and play on the trampolines, everyone was required to execute a participant agreement, which included an arbitration clause. Mr. Burns claimed that he did not sign the agreement in question and that it is therefore unenforceable against him. It was established that Ms. Burns completed the information on her husband’s participation agreement and then affixed his name to it. I believe that she was operating as his agent when she performed these activities and that Mr. Burns’ participation agreement is enforceable against him.

In Petersen v. Kindred Healthcare, Inc., 2017 PA Super 26, 155 A.3d 641, 645 (Pa.Super. 2017), we noted the “party asserting the existence of an agency relationship bears the burden of proving it by a fair preponderance of the evidence.” As this Court outlined in Walton v. Johnson, 2013 PA Super 108, 66 A.3d 782, 786 (Pa.Super. 2013), “An agency relationship may be created by any of the following: (1) express authority, (2) implied authority, (3) apparent authority, and/or (4) authority by estoppel.” Accord Washburn v. NHealth Facilities, Inc., 2015 PA Super 168, 121 A.3d 1008 (Pa.Super. 2015). The “creation of an agency relationship requires no special formalities,” and its existence is a question of fact. Walton, supra at 787. “In establishing agency, one need not furnish direct proof of specific authority, provided it can be inferred from the facts that [*16]  at least an implied intention to create the relationship of principal and agent existed.” Id. Comment b to Restatement (Second) of Agency § 1 (emphasis added) sets forth, “To constitute the relation, there must be an agreement, but not necessarily a contract, between the parties; if the agreement results in the factual relation between them to which are attached the legal consequences of agency, an agency exists although the parties did not call it agency and did not intend the legal consequences of the relation to follow.” Accordingly, the relationship can be inferred from the circumstances of the case by looking at factors such as the relationship of the parties and their conduct. Scott v. Purcell, 490 Pa. 109, 415 A.2d 56, 60 n. 8 (Pa. 1980)Accord Wisler v. Manor Care of Lancaster PA, LLC, 2015 PA Super 189, 124 A.3d 317, 323 (Pa.Super. 2015) (“we look to facts to determine whether the principal expressly or impliedly intended to create an agency relationship”). “To that end, family ties may be relevant when considered with other factors evincing agency.” Id. (citing Sidle v. Kaufman, 345 Pa. 549, 29 A.2d 77, 81 (Pa. 1942)). Moreover, “While the marital status in itself does not give rise to an agency relationship, it is competent evidence when considered with other circumstances as tending to establish that one spouse was agent for the other. Croft v. Malli, 378 Pa. 6, 105 A.2d 372, 376 (Pa. 1954) (quoting Restatement of Agency, § 22, comment (b),

In my view, the facts, the relationship between the parties, and the [*17]  circumstances establish that Ms. Burns operated as an agent for her husband when she signed the agreement in question. On the date in question, Mr. Burns, together with his wife and son Shamus, entered Sky Zone. He asked an employee where the bathroom was located, and he promptly proceeded to that facility. Supplemental Memorandum of Law in Further Support of Preliminary Objections to the Complaint, 9/12/16, at Exhibit A (Deposition of Joseph Bums) at 19-20 (“Exhibit A”). Ms. Burns remained at the counter and was informed by the Sky Zone employee that, in order to enjoy the trampoline facilities, all participants were required to execute a participation agreement. Supplemental Memorandum of Law in Further Support of Preliminary Objections to the Complaint, 9/12/16, at Exhibit B (Deposition of Dawn Bums) at 19-20 (“Exhibit B”).

Agreements were completed and executed at kiosks near the counter, but the employees at the counter could not view the completion of the forms from their location. Ms. Burns went to the kiosk, read and filled out Mr. Burns’ participation agreement, as well as the one pertaining to Shamus, and executed the agreements for them. The language in the relevant agreement [*18]  stated that Joseph Burns had read and completed the agreement.

Ms. Burns returned to the counter, and the Sky Zone employee asked her for the names on the agreement; Ms. Burns told the employee that Joseph Burns and Shamus Burns had signed the agreement. Exhibit B at 17. The employee then typed the names into the computer. Supplemental Memorandum of Law in Further Support of Preliminary Objections to the Complaint, 9/12/16, Exhibit 13 at 12.

Nothing would have alerted Sky Zone to the fact that Ms. Burns signed Mr. Burns’ name on his participation agreement. While Ms. Burns testified that the employee behind the counter saw her walk over to the kiosk, Exhibit B at 18, Sky Zone established that an employee working behind the counter cannot observe what a guest is typing due to the distance between the counter and the fact that the kiosk computer screens faced away from the counter. Supplemental Memorandum of Law in Further Support of Preliminary Objections to the Complaint, 9/12/16, Exhibit D (Deposition of Ann Nicole Atkinson) at 21-22.

At his deposition, Mr. Burns reported that he was unaware that his wife had signed the participation agreement for him. Exhibit A, at 25. He did admit [*19]  that she “usually handles that stuff.” Id. at 13. Additionally, Mr. Burns understood that his participation agreement was completed and executed so that he could participate in Sky Zone trampoline activities, he was not upset with his wife for signing the agreement, and he admitted that, if Ms. Burns had not signed the agreement for him, he would have signed it in order to participate in Sky Zone trampolineactivities. Id. at 34, 26. Mr. Burns voluntarily decided to utilize the trampoline at the Sky Zone establishment, and readily could have refused to enjoy that activity if he did not like the participation agreement. Exhibit A at 27.

Mr. Burns openly admitted that, when the family engaged in recreational activities, Ms. Burns “normally handles that stuff.” Exhibit A at 13. Thus, in connection with the allocation of the marital duties, Ms. Burns had the authority to handle paperwork and take care of ensuring her husband’s participation in recreational events. In this case, that process included reviewing and signing the participation agreement. These facts and circumstances, as well as the family ties and, specifically, the spousal relationship between Mr. and Ms. Burns, establish that Ms. Burns had implied [*20]  authority. This authority was a component of her express authority, delegated to her by Mr. Burns, to perform the actions necessary to schedule and ensure the family could enjoy recreational activities together. Hence, I respectfully dissent from the Majority’s disposition of this matter.