By Doyice Cotten
In 2016, Michelle Kalinkina, a professional model agreed to have a public haircut and styling demonstration. During the haircut, the stylist cut Kalinkina’s neck causing physical injury and scarring. She subsequently sued for damages alleging negligence and gross negligence (Kalinkina v. Martino Cartier Enterprises, LLC, 2017 U.S. Dist. LEXIS 95670).
Cartier provided a waiver signed by Kalinkina as a defense against the negligence claim. The waiver read:
I am providing modeling services for International Designs Corp. and/or Bersheart LLC, their parents and subsidiaries, affiliates, and partners, in one or more modeling sessions.
I authorize and license International Designs Corp. and/or Bersheart LLC, their parents and subsidiaries, affiliates, partners, licensees, representatives, and all persons or corporations acting with their permission or upon their authority (collectively “International Designs Corp.”), to use my name, voice, photograph, likeness, video, appearance and performance (the “Material”) arising from any past or future modeling sessions in connection with the manufacturing, advertising, promotion, distribution and sale of International Designs Corp. products and services, and in connection with any other related activities. International Designs Corp. may edit and modify the Material, and may incorporate and use all or any part of the Material in video, audio, online and print ads, still photographs, catalogs, packaging and package inserts, and all other media (the “Advertising”), and may reproduce, exhibit, broadcast, transmit and distribute Advertising containing the Material by any [*6] and all means, media and channels of distribution.
* * *
I hereby release International Design Corp. and/or Bersheart LLC, their parents and subsidiaries, affiliates, partners, licensees, representatives, and all persons acting with their permission or upon their authority, from all liability in connection with the Material, including without limitation any accident or unforeseen incident resulting from or occurring during any modeling session (including but not limited to, accidents during model hair cutting, preparation, and during demonstrations).[Bold added.]
A major issue in the case revolved around whether New York law required the use of the word “negligence” for waivers to be enforceable. The court cited several points summarizing New York waiver law (citations omitted).
- Exculpatory agreements are subject to close judicial scrutiny and a general rule of strict construction.
- Because the law “frowns upon contracts intended to exculpate a party from the consequences of his own negligence,” if the “intention of the parties is [not] expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for his own negligent acts.”
- The Defendants are correct that “the word ‘negligence’does not have to be specifically used for the courts to give effect to an exculpatory agreement.”
- However, “words conveying a similar import must appear.” Words of similar import include “neglect” and “fault.”
Examination of the waiver show that no such language appears in the waiver. The court stated that a release using the general terms “from all liability in connection with the Material, including without limitation any accident or unforeseen incident” was insufficient to meet the rule of strict construction; the term “accident” cannot substitute for the word “negligence.” The court cited another case in which the court ruled that “agreements to release parties from ‘any and all responsibility or liability of any nature whatsoever’ will not bar claims based on ordinary negligence.”
The Court concludes that the waiver does not preclude this action for ordinary negligence. The motion to dismiss Plaintiff’s negligence claim is denied.
Gross Negligence Claim
Under New York law, a waiver can protect a defendant from liability for their own ordinary negligence; however, a waiver is not applicable to this claim of gross negligence because waivers will not protect a defendant from liability for gross negligence or a willful act.
The court noted that plaintiff alleged “that Cartier prevented her from leaving the stage to obtain treatment, that Defendants misinformed her as to the injury, and that Defendants attempted to conceal the injury from her.” In light of the claim that “Plaintiff has alleged that the Defendants’ behavior at least “‘smacks’ of intentional wrongdoing” or “evinces a reckless disregard for the rights of others,” the court refused to dismiss the gross negligence claim. Further action will be necessary to determine if Cartier’s actions rise to the level of gross negligence.
Risk Management Take-Aways
The law discussed above is New York law. Waiver law in most states does not require the use of the word “negligence” or similar terms. Best practice, however, would be to include the term negligence in all waivers because the term clarifies intent and substantially decreases any ambiguity that might exist – and ambiguity of intent is one of the major reasons that waivers sometimes do not protect. So state clearly the signer waives liability for injury resulting from the negligence of the provider.
Photo Credit: Thanks to Kelly Sue DeConnick on Flickr.