By Alexander “Sandie” Pendleton
Alexander Pendleton is a practicing attorney in Milwaukee, Wisconsin. He has a strong interest in sport and recreation waivers.
Are you sure you know who is signing your waivers? The perils of not knowing were emphasized in a 2021 Pennsylvania federal court decision in which the court refused to enforce a signed waiver.
Bonnen v. Pocono, (Pennsylvania, 2022) arose out of whitewater rafting trip in which one of the participants drowned after his foot became lodged in a rock, and he was unable to surface. The deceased’s mother commenced a lawsuit alleging that the rafting company was negligent, including in not having a guide in the raft during the trip.
After the lawsuit was commenced, the rafting company brought a motion to dismiss, based on the terms of the signed waiver form it had relating to the deceased. Specifically, in its motion the company alleged that the plaintiff was barred from bringing a suit in federal court, because the waiver agreement included a forum selection clause, which provided that any claim that was brought had to be brought in state court (in the county where the rafting company was located).
In response to the motion, the deceased’s mother argued that the waiver agreement was unenforceable, because she signed it on behalf of her adult son, without his authority or consent to do so. The court agreed that because of the above, it would not enforce the terms of the agreement (at least not at the motion to dismiss stage).
The case raises a host of issues, and it’s possible that at some point the judge’s decision will be appealed. It is also possible that the rafting company might bring a counterclaim for fraud against the mother. But the case illustrates a serious potential risk for recreational-opportunity providers, especially as more registration is done online.
This issue can arise in several different situations, such as:
- A minor participant brings a signed waiver form to a facility, that appears to have the signature of the minor’s mother on it. After an injury occurs and a claim is made, the mother alleges she never saw the form, and that someone else forged her signature on the form.
- A group of friends intend to do a race together, and one person registers the whole six-person team, and purports to sign the online waiver on behalf of each of the team members. After a claim is made by one of the team members, the injured teammate claims she never saw the waiver agreement, and never gave her consent to the registering-teammate to sign any agreements on her behalf.
- Three years after a skydiving fatal injury, a claim is made by the estate of a deceased skydiver, alleging negligence. The skydiving center seeks dismissal of the claim, based on the signed waiver agreement it has. The estate claims that is not the deceased’s signature on the waiver form. The employee who handled the registration that day is no longer available to provide testimony.
Each of the above scenarios could result in a waiver being held invalid.
This is not a new issue in the law. One can find legal cases going back hundreds of years in which one party is faced with the issue of having to try to prove that is in fact the other party’s signature on contract or other legal document. Some modern methods exist to try to address the issue (for example, notarized signatures), but of course the use of notaries in the recreational context is quite rare.
Risk Management Take-aways
Recreational providers need to ensure they have procedures and safeguards in place that would enable them to be able to prove who it was who signed a waiver agreement in question. There are several processes and procedures that can be used to lessen the risks associated with the above scenarios. (Some of which are addressed in Doyice Cotten’s book, Waivers & Releases of Liability.) Many recreational providers, unfortunately, are currently not using those procedures or safeguards.
Finally, the Bonnen decision raises one other issue worth noting. It is not enough to have a waiver agreement document that is well drafted. Organizations need to ensure their risk management plan includes not just such a document, but also policies and procedures that ensure that the document is consistently properly presented, and properly preserved. Too often, recreational providers pay close attention to the document, but fail to give sufficient attention to the process and procedures surrounding the use of the document.
Photo Credit: Thanks to Gary Bembridge via Flickr.