By Doyice Cotten
In a Massachusetts case (Borges v. Sterling Suffolk Racecourse, Inc., 2000), Israel Borges, a trainer, sustained injuries when he slipped due to ice on the ground and fell while on property at the Suffolk Downs Track owned and controlled by the defendants.
The defendants moved for summary judgment because Borges’ claim was barred by a waiver executed in a stall application. The pertinent part of the waiver stated:
Suffolk Downs, … shall not under any circumstances be liable for any injuries or damages to person, horses or property sustained to or by any horse owners, trainers, jockeys, their agents, servants, or employees while on the grounds of Suffolk Downs. All risks of injury … by fire, theft, accident, negligence, intentional or criminal act, or otherwise are assumed by such owners, trainers …, whether caused negligence of Suffolk Downs by its agents or by the condition of the premises … or by Act of God or by any other reason or cause whatsoever.
It is apparent from the waiver language that no duration or limitation is specified. Borges claimed the stall application/waiver was not in effect on the date on which his alleged injury occurred. Borges claimed 1) that the stall application/waiver had a heading stating “Fall Meeting–Opening October 20, 1995.” Thus he claims document was in effect only in the later part of 1995 and not on the February, 1996, injury date. 2) He argues that the Massachusetts Racing Commission issues a racing license to the defendants each calendar year – thus the document would expire on December 31, 1995.
Defendants claim that the stall application/waiver was in effect for the 1995-1996 racing season. They presented evidence that stall application was in effect for the entire 1995-1996; further, the racing season ended on June 8, 1996.
Massachusetts courts have long held that waivers of liability for negligence are enforceable. Absent fraud or duress, a party who signs a waiver is bound by its terms.
In the absence of a specific assertion regarding the duration of a waiver, Massachusetts courts declare the time for performance of a contract does not extend forever but only for a reasonable time. To determine what is a reasonable time, a court should consider the nature of the contract, the probable intention of the parties, and the attendant circumstances. [Emphasis added.]
The court stated
Where the evidence is in dispute and open to different inferences, the question whether an act has been done within a reasonable time after the happening of a certain event is ordinarily a question of fact, but where . . . the facts are not in dispute the question becomes one of law.
The court felt that the conduct of the parties indicated they intended the waiver contained in the stall application contract to remain in effect throughout the racing season. The court reasoned 1) it contained no expiration date; 2) Borges continued to store his horse in the defendants’ stall well after December 31, 1995; 3) he did not execute a second stall application for that time period; and 4) Borges intended to use the horse for racing purposes.
Consequently, Borges’ action for negligence against the defendants is barred by virtue of the waiver. In this case, the court determined the duration of the waiver based on the likely intent of the parties; this is quite different from the procedure followed in the Weinrich v. Lehigh Valley Grand Prix case where the case was remanded for a jury trial.
Risk Management Take-Aways
- Make certain that your waiver specifies a duration. In some cases, it might be for the “event.” In other cases, it might appropriate for the duration to be for a season. In yet other cases, it might be of unlimited duration (e.g., forever, on all subsequent dates).
- In a case such as this one, it would be wise to specify that the waiver is either 1) for the season (with the dates of the season) specified, or 2) for “now and all subsequent dates”).
- A foolproof record keeping system should be employed with backups of all records stored in another location.