What Makes a Waiver Adhesionary – and consequently unenforceable?


By Mary Cotten

A waiver of liability in the sport, recreation, or fitness industry can usually be accurately described as a standardized agreement printed on the company’s form, offering little or no opportunity for negotiation or free and voluntary bargaining by the signer. Unfortunately, this is also the definition of a contract of adhesion. Worse news yet, adhesionary contracts in most states are against public policy and unenforceable. But, for the good news, courts are consistent in holding that sport, recreation or fitness activities are not “essential services;” thus, clients are not forced to participate in these activities – in fact, they can select from dozens of recreational activities not requiring waivers. However, there are circumstances under which a waiver is a contract of adhesion.

A 2001 Pennsylvania case, Fay v. Thiel College, is an example.  The plaintiff, who was a student at Thiel College, suffered injuries while attending a study abroad trip to Peru sponsored by the college. Prior to departure, Fay was required to sign two forms, one of which was a Waiver of Liability.  If she had refused to sign, the college would not have permitted her to go on the trip.

During the trip, Fay became ill and was taken to a medical clinic. The faculty supervisors and other students departed on a scheduled trip, leaving Fay alone in the clinic with a Lutheran missionary to act as translator.  Fay’s requests to be transferred to a hospital in Lima, to fly home, and to call her parents were all denied.  An unnecessary appendectomy was performed and Fay was sexually assaulted. Thiel College submitted the waiver signed by Fay as a defense against claims arising from Fay’s injuries during her participation in the study abroad trip.

In Pennsylvania, one of the conditions which must be met for an exculpatory clause to be valid is that the clause is not a “mere contract of adhesion, whereby [one party] simply adheres to a document which he is powerless to alter, having no alternative other than to reject the transaction entirely.” With respect to this requirement, the court noted that a person presented with this type of contract has no choice but to accept the terms of the document as written or to reject the transaction entirely.  In this case, both parties agreed that the waiver of liability form was presented on a take-it-or-leave-it basis; its terms were not bargained for by Fay.  She either signed the form or she did not go on the trip. Because the exculpatory clause failed to satisfy one of the three requirements for validity, the court found the exculpatory clause in the waiver was not valid.  For this and other reasons, summary judgment was denied.

The purpose of the activity in this case was educational, not recreational.  It appeared that the course of study was unique to the trip.  Both of these factors may have influenced the ruling.  The general rule for sport, recreation, or fitness businesses or professionals is that a waiver of liability is not a contract of adhesion.