D.C. Court Rules on Opportunity to Negotiate, Gross Negligence/Recklessness, and Lack of Consideration

By Doyice J. Cotten

968361517_d0db27b9c2In a case  in which a client was injured on a Segway[1] tour, the U.S. District Court for the District of Columbia addressed several aspects of waiver law in the District of Columbia. (Hara v. Hardcore Choppers, LLC (2012))

Opportunity to Negotiate

The court said that the waiver in the case was not against public policy. Regarding unequal bargaining power, the court stated that it did not suppose that the parties were of equal bargaining power; it went on to add that a showing of unequal bargaining power does not by itself render a liability waiver unenforceable on public policy grounds. The court listed 3 requirements for a waiver to be unenforceable on public policy grounds:
1)      the plaintiff must show a lack of opportunity for negotiation;
2)      the service he received must be a necessary service; and
3)      there was a great disparity in bargaining power.

What is interesting is that the court cited Moore v. Waller (2007) who held that plaintiff’s failure to show that the plaintiff had objected to the waiver provision or attempted to bargain for different terms failed to evidence a lack of opportunity for negotiation. This is a very different viewpoint from that of courts in Wisconsin and Mississippi (see previous posts). Subsequently, the court ruled there was not sufficient disparity in bargaining power to justify summary judgment on public policy grounds.

Gross Negligence[2] and Recklessness

The District of Columbia prohibits waivers of liability for gross negligence, recklessness, and intentional acts. The court defined gross negligence as “such an extreme deviation from the ordinary standard of care as to support a finding of wanton, willful and reckless disregard or conscious indifference for the rights and safety of others.”  It went on to say that this standard implies the act was so extreme as to imply some sort of bad faith; an act in which the actor was aware that harm was highly probable.

While the plaintiff alleged both gross negligence and recklessness, plaintiff presented no evidence that the defendant acted with disregard to any risk. Actually, plaintiff’s opposition to defendant’s motion for summary judgment had few, if any, references to the facts of the case. Therefore, the court found there was no support for his gross negligence and recklessness claims.

Lack of Consideration

Another issue involved the plaintiff’s claim that the waiver is unenforceable because it lacked consideration. The court cited the Restatement (Second) of Contracts that “any performance which is bargained for is consideration . . . This . . . states the general rule that exchange of performance for promise is an enforceable bargain . . . .” The court stated that defendant’s performance in this case was its provision of a Segway to plaintiff and a guided tour of the District. In return, plaintiff promised he would not sue defendant for negligence if he were injured on the tour. The court ruled there was adequate consideration.


Photo Credit: Thanks to runneralan2004 at Flickr.






[1] A Segway is a motorized, two-wheeled personal vehicle for one person, most closely resembling a child’s scooter.

[2] While the District of Columbia does not generally recognize varying degrees of negligence, courts have, for equitable reasons, recognized whether a defendant acted with gross negligence; such is the case with liability waivers.