By Doyice Cotten
Eugene Jaeger, operator of the Unicorn Strings Music Company was a vendor at the outdoor International Renaissance Festival (IRF) in Maryland when he slipped and fell while walking on a gravel walkway and a boardwalk to go to the restroom. While on the boardwalk, he stepped onto a patch of a slippery substance and fell.(Jaeger v. International Renaissance Festivals, LTD, 2017 U.S. Dist. LEXIS 72539)
He had signed a waiver of liability in his vendor lease; it provided that the tenant vendor:
- HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the promoters, other participants, operators, officials, any persons in any restricted area, sponsors, advertisers, owners and lessee of premises used to conduct the event and each of them, their officers and employees, all for the purposes herein referred to as releasees, from all liability to the undersigned, his personal representative, assigns, heir and next of kin for any and all loss or damage, and any claim or demands therefore on account of injury to the person or property or resulting in death of the undersigned, whether caused by the negligenceof the releasee or otherwise while the undersigned is in or upon the restricted area, and/or, competing, officiating in, observing, working for, or for any purpose participating in the event.
- HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS the releasees and each of them from any loss, liability, damage, or cost they may incur due to the presence of the undersigned in or upon the restricted area or in any way competing officiating, observing, or working for, or for any purpose participating in the event and whether caused by the negligenceof the releasee or otherwise.
- TENANT HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE due to the negligenceof the releasees or otherwise while in or upon the restricted area and/or while competing, officiating, observing, or working for, or for any purpose participating in the event.
- EACH OF THE UNDERSIGNED expresslyacknowledges and agrees that the activities could be dangerous and involve the risk of serious injury and or death and or property damage. EACH OF THE UNDERSIGNED further expressly agrees that the foregoing release, waiver, and indemnify agreement is intended to be as broad and inclusive as is permitted by the law of the Province or State in which the event is conducted and that if any portion thereof is held invalid, it is agreed that the balance shall, not withstanding, continue in full legal force and effect. THE UNDERSIGNED HAS READ AND VOLUNTARILY SIGN THE RELEASE AND WAIVER OF LIABILITYAND INDMNITY AGREEMENT, and further agrees that no oral representations, statement or inducements apart from the foregoing agreement have been made.
The plaintiff agreed that the Waiver Clause would appear to preclude IRF’s liability, but pointed out that the clause violated Section 8-105 of the Real Property Article of the Maryland Code which states:
If the effect of any provision of a lease is to indemnify the landlord, hold the landlord harmless, or preclude or exonerate the landlord from any liability to the tenant, or to any other person, for any injury, loss, damage, or liability arising from any omission, fault, negligence, or other misconduct of the landlord on or about the leased premises or any elevators, stairways, hallways, or other appurtenances used in connection with them, and not within the exclusive control of the tenant, the provision is considered to be against public policy and void. An insurer may not claim a right of subrogation by reason of the invalidity of the provision.
The court agreed that the Vendor Lease constitutes a lease within the scope of the Maryland Real Property Article; the waiver used the terms “lease,” “landlord,” and “tenant.”
So, although the waiver was well-written and clearly protected IRF from liability for negligence, it was unenforceable and failed to protect.
But Was IRF Negligent?
In this case, it is undisputed that plaintiff was an invitee on the premises; the duty owed an invitee is:
An owner or occupier of land only has a duty to exercise reasonable care to protect the invitee from injury caused by an unreasonable risk that the invitee would be unlikely to perceive in the exercise of ordinary care for his or her own safety, and about which the owner knows or could have discovered in the exercise of reasonable care. The duties of a business invitor thus include the obligation to warn invitees of known hidden dangers, a duty to inspect, and a duty to take reasonable precautions against foreseeable dangers.
The invitee has the burden to show that the “proprietor created the dangerous condition or had actual or constructive knowledge of its existence’ prior to the invitee’s injury.” Evidence must show that both 1) a dangerous condition existed and 2) that the “proprietor had actual or constructive knowledge of it, and that that knowledge was gained in sufficient time to give the owner the opportunity to remove it or to warn the invitee.”
The court relied upon testimony by Jaeger regarding the cause of the accident. Jaeger stated:
I wouldn’t say that I saw any obstacles. I was familiar with the boardwalk, and, when it was slick, I didn’t walk on it. And when it was, I did — when it was dependable, I could walk on it. So that day, it was fine, and the whole boardwalk was dependable to walk on and — except for that one spot. And the spot was innocuous in that it seemed like just a dirty spot.
The court also noted that Jaeger himself said that the slippery spot “was camouflaged as just a dirty board — set of boards, dirty area on the boardwalk.” With terms like “innocuous” and “camouflaged” used to describe the spot, the court deemed that it was not possible to say IRF would have discovered the slippery patch through a reasonable inspection; further, it added that even if discovered, it may not have been able to warn plaintiff.
Thus, the court granted summary judgment in favor of the defendant IRF.
This was an interesting case. The defendant relied on a well-written liability waiver, but it failed to protect because of a statute. However, to be liable, IRF must have been negligent and that negligence must have been the cause of the injury. Summary judgment was granted because there was insufficient evidence of negligence.
Photo Credit: Thanks to Virginia State Parks on Flickr.