By Doyice Cotten
In June, 2020, Harry and Patricia Boldt joined a chartered fishing tour operated by Reel Recreation and led by Captain Taylor. They signed liability waivers intended to release the charter company from liability for negligence. The seas were calm when an 8 foot high wave struck the boat injuring Mr Boldt. Boldt filed suit claiming negligence, loss of consortium, and vicarious liability. The defendant moved for summary judgment based on the waiver signed by the plaintiff. This case is the result of an appeal by the plaintiff (Boldt v. Taylor, et.al., 2022).
The first issue was whether New Jersey law or Federal admiralty law applied. When the court compared the laws, there was little difference. Generally admiralty law overcomes state law, but here, both jurisdictions allow the enforcement of waivers of negligence and both do not enforce waivers in the event of gross negligence. Further, an admiralty court can rely on state law unless it conflicts with admiralty law. The court found federal admiralty law and New Jersey law are in sync for the purposes of exculpatory clauses.
Under admiralty law, a waiver is valid if it is: (1) clear and unambiguous considering all the circumstances, (2) not inconsistent with public policy, and (3) not a contract of adhesion. The court looked at each of these requirements for validity.
Clear & Unambiguous
The waiver follows:
“Reel Reaction Sportfishing LLC Charter Fishing – Assumption of Risk and Complete Release of Liability,”
I understand that the purpose of signing this document is to GIVE UP ALL of my rights to sue Reel Reaction Sportfishing LLC, and any of their EMPLOYEES, AND ALL OF ITS BOATS (WHETHER OWNED, OPERATED, CONTROLLED, BORROWED, LEASED, CHARTERED OR OTHERWISE) HEREINAFTER REFERRED TO AS THE RELEASED PARTIES AND TO HOLD THESE ENTITIES HARMLESS FROM ANY AND ALL LIABILITIES ARISING AS A CONSEQUENCE OF ANY ACTS OR OMISSIONS ON THEIR PART, INCLUDING BUT NOT LIMITED TO NEGLIGENCE OF ANY TYPE.
[…] I UNDERSTAND THAT THERE ARE INHERENT RISKS INVOLVED WITH BOATING, RISHING, AND WATER ACTIVITIES, including but not limited to equipment failure, perils of the sea, harm by marine creatures (including marine animal bites), acts of fellow participants, entering or exiting the water, injury from hooks or other sharp objects, loss of balance, slipping/falling, and/or motion sickness, and injuries caused by unpredictable weather and/or sea conditions, boarding or disembarking the vessel, injuries caused by fishing equipment, activities on the docks, and I HEREBY ASSUME EACH AND EVERY SUCH RISK WHETHER SPECIFICALLY LISTED HEREIN OR NOT WHETHER FORESEEABLE OR NOT. IT IS MY INTENTION THAT THIS RELEASE BE CONSTRUED AS BROADLY AS POSSIBLE AND IN FAVOR OF THE RELEASED PARTIES.
[…] IT IS MY INTENTION BY THIS INSTRUMENT TO GIVE UP MY RIGHT TO SUE ALL PERSONS OR ENTITIES REFERRED TO HEREIN, WHETHER SPECIFICALLY NAMED OR NOT, AND IT IS ALSO MY INTENTION TO EXEMPT AND RELEASE Reel Reaction Sportfishing llc, OPERATOR, OTHER ASSOCIATED PERSONNEL, and its boats (whether OWNED, OPERATED, LEASED, OR CHARTERED), AND TO HOLD THESE ENTITIES HARMLESS FROM ANY AND ALL LIABILITY FROM PERSONAL INJURY, PROPERTY DAMAGE, OR WRONGFUL DEATH CAUSED BY NEGLIGENCE OR GROSS NEGLIGENCE AND I ASSUME ALL RISK IN CONNECTION WITH FISHING, RIDING, AND ALL OTHER BOATING/FISHING ACTIVITIES, INCLUDING BUT LIMITED TO THE MAINTENANCE OF THE EQUIPMENT OR ORGANIZATION OF THIS ACTIVITY.
The court pointed out that the waiver specifically includes the word “Negligence.” The plaintiff, however claims that there was “no discussion whatsoever about the release itself.” He claimed to not remember signing the document and did not understand that he waived liability. He further claimed that he had not read the document. Secondly, the plaintiff complained of a black box at the bottom of the page that referred to a rod/reel overboard agreement. Plaintiffs emphasize that although this black boxed section cautions the reader “IMPORTANT – READ CAREFULLY[,] Plaintiffs suggested that this specific section of text distracts and detracts from the other, more relevant sections of the Waiver.
The court responded that (1) that the language was clear and spoke for itself, requiring no discussion. The Waiver also deliberately utilized capital lettering, bold font, and other techniques to signal important phrases and statements to the document’s signatories. Regarding the plaintiff’s remembrance and understanding, the court said the general rule was:
It is the general rule that where a party affixes his signature to a written instrument, such as a release, a conclusive presumption arises that he read, understood and assented to its terms and he will not be heard to complain that he did not comprehend the effect of his act in the signing.
So the court declared that the language was clear and understandable.
Violation of Public Policy
The court next looked at whether the waiver was against the public policy of New Jersey and admiralty law. It stated that both provide that waivers of negligence are consistent with public policy. The plaintiff tried to claim gross negligence, but the court ruled that gross negligence was not a claim in the complaint. Further, the court stated that no evidence of gross negligence was included. Thus, the court held that the waiver was not in violation of public policy.
Contract of Adhesion
Finally, the Waiver did not constitute a contract of adhesion because waivers used for voluntary recreational activities are not considered to be adhesive contracts. Such contracts are not adhesive because it is a voluntary recreational activity which he chooses to participate in. If he does not want to sign the contract, he is under no pressure to do so. He can freely choose not to sign and go elsewhere for his recreation. Thus the court held that the contract was not an adhesionary contract.
The court ruled that the waiver was clear and unambiguous, did not violate public policy, and was not a contract of adhesion. As such, the contract was valid and enforceable. Summary judgment was granted in favor of the defendants. Plaintiff’s claims of loss of consortium, and vicarious liability were both derivative of the negligence claim and were dismissed.
Photo Credit: Thanks to Bernard Spragg N.Z. via Flickr.