By Doyice Cotten and Mary Cotten
We have previously addressed the question “Do online electronic waivers work?” (see Online Waiver Agreements: Not Worth the Paper They’re (Not) Written On?, Online Waivers/Electronic Signatures in NY, and Waivers: Do Electronic Signatures Work?). There have been at least three recent cases addressing the issue.
Two Florida cases addressed the issue. In Hinely v. Florida Motorcycle Training, Inc. (2011 Fla. App. LEXIS 6757), a woman registered for a motorcycle training school on the internet and signed an electronic internet waiver of liability. Hinely then suffered an injury during the motorcycle training program. The waiver was enforced by the court and the fact that it was an electronic waiver was not questioned.
In the second 2011 Florida case (Johnson v. Royal Carribean Cruises, LTD, 2011 U.S. Dist. LEXIS 28128), a cruise ship passenger signed an electronic Onboard Activity Waiver prior to participating in a private lesson on the Flowrider. After about forty minutes into her private less, Johnson was instructed to stand on the board and fell when the instructor let go of the board. Again the court enforced the waiver and the fact that it was electronic was not in question. One point worth noting – under maritime law, waivers relieving the ship of liability for negligence onboard the ship are not upheld. If the waiver is for a shore excursion, the waiver is generally upheld. Here, however, the waiver was upheld because the activity was inherently dangerous and simulated surfing is not an essential function of the common carrier. Click here for an in-depth discussion of this case by Robert D. Peltz and Carol L. Finklehoffe, Leesfield & Partners, P.A. Miami, Florida.
In a 2010 Minnesota case (Waltz v. Life Time Fitness, Inc., 2010 Minn. App. Unpub. LEXIS 741), Graham Waltz was injured when he stepped into a hole in the sauna. When he joined the club, he had signed a Member Usage Agreement on which he released the club from liability for negligence. In his suit Waltz contended that the Member Usage Agreement was electronic and he was shown only page 2 of the agreement. He did not remember seeing or being shown the release language on page 1 of the agreement. He claimed that he should have been given a paper copy of the agreement, but the court ruled that he waived all claims resulting from Life Time Fitness negligence.
Based on a limited number of cases in an equally limited number of states, it seems that electronic waivers are likely to be enforced in most states. Florida, New York, and Minnesota are among those states that have enforced electronic waivers.
Photo Credit: Thanks to Tommy McCoy.