By Doyice Cotten
In this case (Belliconish v. Fun Slides Carpet Skate Park, Inc., 2014 Pa. Super. Unpub. LEXIS 349), Mr. Belliconish took his family to an indoor skate park. He signed waivers on behalf of himself and his family. Fun Slides uses two waivers – one for adult participants and one for minor participants. Belliconish was inadvertently given a minor waiver which he signed.
After about an hour of skating, Belliconish fell, fracturing his patella. He subsequently filed suit alleging negligence by Fun Slides. Belliconish argued that the waiver “’should not be construed as a waiver of liability as to his own injuries’ because the form was intended for minors.” He claimed the language was ambiguous and should be construed against parties seeking immunity.
Trial Court Ruling
The trial court found no merit in the argument. It found that the language released Fun Slides even though it was meant for minors. It quoted part of the agreement which stated:
In consideration of being permitted to participate in the sport of carpet skating and activities of Fun Slides today and on all future dates, I, (the minor participate [sic] and Parent/Guardian), on behalf of myself, my minor participant, my spouse, my heirs, personal representatives, and assigns, hereby release, discharge, and covenant not to sue Fun Slides, Simtec Co., …from all liability, claims, demands, losses, or damages.
The trial court stated further that
There is no name of a child-participant on the form, [Belliconish] handwrote his own date of birth and his own address, and indicated that his emergency contact was his wife, indicating her name and mobile phone number. It is clear to the [c]ourt that he was signing the form for himself and his own participation in carpet skating on the date of the incident. The language of the Waiver is clear and unambiguous.
The trial court ruled the waiver was valid and enforceable, thereby, barring Belliconish’s suit.
Appellate Court Discussion
This Court discussed the validity of waivers stating that while waivers are not favored and are strictly construed in Pennsylvania, they are usually enforced if three conditions are met. They are: 1) the clause must not contravene public policy; 2) the contract must be between persons relating entirely to their own private affairs; and 3) each party must be a free bargaining agent so that the contract is not one of adhesion.
Here, it went on to say that requiring a waiver as a condition of participation in a recreational activity does not contravene public policy. It added that the second condition is also satisfied because the agreement is between private parties relating to private affairs. As to the third condition, the court explained that Pennsylvania courts have established that a waiver signed to participate in a recreational activity is not a contract of adhesion because:
[t]he signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity. The signer is a free agent who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable.
The court presented several excerpts from the waiver:
In consideration of being permitted to participate in the sport of carpet skating and activities of Fun Slides today and on all future dates, I, (the minor participant and Parent/Guardian), on behalf of myself, my minor participant, my spouse, my heirs, personal representatives, and assigns, hereby release, discharge, and covenant not to sue Fun Slides, SIMTEC CO., its respective administrators, directors, agents, officers, officials, agents, employees, volunteers, other participants, sponsoring agencies, sponsors, advertisers, and if applicable, the owners and lessors of premises used to conduct the skating activities, (each considered one of the “Releasees” herein) from all liability, claims, demands, losses, or damages caused or alleged to have been caused in whole or in part by the ORDINARY NEGLIGENCE of the Releasees (including negligent rescue operations).
This agreement applies to 1) personal injury (including death) from incidents or illnesses arising from participation at Fun Slides (including, but not limited to active participation, classes, observation, individual use of facilities or equipment, locker room area, and all [*13] premises including the associated sidewalks and parking lots; 2) any and all claims resulting from the damage to, loss of, or theft of property; and 3) the right to sue for loss suffered by the participant, the parents, or the guardians.
And the concluding paragraph was:
I, (the minor participant and Parent/Guardian), have read this Assumption of Risk, Waiver of Liability, and Indemnification Agreement and fully understand its terms. I understand that I am giving up substantial rights, including my right to sue. I further acknowledge that I am signing the agreement freely and voluntarily, and intend my signature to be a complete and unconditional release of all liability due to ordinary negligence by Fun Slides or the inherent risks of the activity, to the greatest extent allowed by law in the State of Pennsylvania.
The court added that, in addition to the language, Belliconish’s intent to release on his own behalf, is highlighted by the uncontested evidence that Belliconish 1) handwrote his name; 2) date of birth; 3) his address on the waiver; 4) did not include the name of a child-participant; and 5) indicated that his wife was his emergency contact.
Appellate Court Ruling
Based on the previous discussion and these facts, the court concludes that the parties understood and intended the waiver to be a waiver of liability for any injuries sustained by Belliconish as a result of ordinary negligence on Appellees’ behalf. It concluded that Belliconish waived his claim to liability for the injuries he sustained.
The appellate court upheld the trial court’s grant of summary judgment in favor of Fun Slides.
Risk Management Take-away
It is easy to see where this entire trial could have been avoided with firm steps in place to be certain clients sign the correct waiver form. Who knows where the breakdown was, but had Mr. Belliconish been given the correct waiver, the chances are great that he would not have sued. Three years of expense, worry, distraction, and headaches could have been avoided. The moral is be sure your people are as well trained as possible.
F.Y.I. The Fun Slides waiver was written by the Cotten’s.