By Doyice Cotten
Families often visit recreational facilities and are required to sign waivers of liability in order to participate. Sometimes the father signs on behalf of the wife; sometimes the wife signs on behalf of the husband. The question is “Are these waivers enforceable against the non-signer. Most businesses require the signature of both – which is the obviously best policy. But, if for some reason one signs the other spouse’s name on the waiver, is that waiver enforceable? The following case should impress upon recreational providers the importance of signatures on waivers and who signs them.
A Pennsylvania appellate court (Burns v. Philly Trampoline Parks, Delco, LLC, 2017) was forced to address this issue. Joseph Burns, his wife Dawn, and his son Shamas entered the trampoline park; Joseph immediately went to the rest room and left Dawn to sign them up and pay the fee. While he was gone, Dawn signed Joseph’s name to a waiver and turned it in. The employees on hand had no way to know she had signed his name.
They commenced to participate and at some point Joseph’s foot caught in a trampoline causing him to suffer a broken ankle. One of the provisions of the liability agreement was that the signer waived a right to trial by jury and agreed the issue had to be settled by arbitration within one year of the incident. Almost two years later, they sued on the basis of several allegations of negligence. The Park claimed that the time limit had expired and that the agreement waived liability for injury due to negligence.
Burns replied that he had never signed the agreement. The trial court ruled that the waiver was not enforceable since Burns had not signed it; it ruled in favor of the plaintiff.
The Park appealed claiming error based on five points:
- The trial court erred by overruling the need to bring the claim to arbitration.
- The trial court erred by allowing Burns to avoid the Agreement based upon his wife’s alleged forgery of Burns’ signature. Claim was that Dawn Burns signed the Agreement as [Joseph Burns’] agent with implied authority and apparent authority, and agency by estoppel.
- The trial court erred because [Joseph Burns] received the direct benefits of having a signed Agreement submitted for him to Sky Zone and is now estopped from not incurring the burdens of the Agreement such as requiring [Appellees] to arbitrate their claims?
- The trial court erred by allowing [Joseph Burns] to avoid the Agreement based upon Dawn Burns’ alleged forgery of [Joseph Burns’] signature, thus allowing appellees to benefit from their deliberate dishonesty.
- The trial court erred to the extent that it intended that its decision to definitively determine that the Agreement was invalid and not binding was premature and usurped the function of the jury?
The court gave the following reasoning:
There is no evidence of record indicating that Joseph Burns expressly authorized Dawn Burns to enter the Agreement on his behalf, but presented the Park’s argument.
- Sky Zone suggests that Dawn Burns had implied authority, as Joseph Burns’ wife, to enter the Agreement on his behalf, because she was normally in charge of registrations such as this.
- Sky Zone further states that Dawn Burns had apparent authority to enter the Agreement, “as the parties entered the facility together and then Joseph Burns went to use the restroom leaving Dawn Burns to handle the enrollment process.
- It also argues that the doctrine of agency by estoppel precludes Appellees from alleging that the Agreement is unenforceable, because Appellees were “intentionally careless in allowing employees to believe that Joseph Burns signed the Agreement and/or in allowing employees to believe that Dawn Burns had the authority to sign the Agreement on Joseph Burns’ behalf.”
The appellate court found that the trial court analysis in response to the Park’s arguments were supported by the record and showed no abuse of discretion. The trial court analysis was:
Implied authority is an extension of express authority. Neither the record nor Joseph Burns’ deposition supports that Joseph Burns gave Dawn Burns “authority to complete paperwork and enroll her husband in activities” as argued by [Sky Zone]. To the contrary, Joseph Burns stated in his deposition that Dawn Burns did not normally fill out waivers and forms for him and that she had never signed his name to participate in an activity. As Dawn Burns did not have express authority to enter any type of agreement for Joseph Burns, she could not have had implied authority to enter the Agreement.
For purposes of apparent authority, there were no prior dealings between [Sky Zone’s] employee and [Appellees]. [Sky Zone’s employee] did not know at the time he/she presented Dawn Burns with the Agreement if she had ever executed anything on Joseph Burns’ behalf. No facts were presented to indicate that Joseph Burns, by words or conduct, led [Sky Zone’s] employee to believe Joseph Burns had granted his wife the authority to sign the Agreement. It is undisputed that Joseph Burns’ only interaction with [Sky Zone’s] employees was asking where the restroom was located and possibly obtaining from an employee the sticker and socks to use the trampoline facility. Therefore, Dawn Burns did not have the apparent authority to enter the Agreement on Joseph Burns’ behalf.
For purposes of agency by estoppel, [Sky Zone] must show that Joseph Burns knew or should have known that Dawn Burns had signed the Agreement. The record is devoid of such a showing. Joseph Burns testified in deposition that he did not know about the Agreement until after his alleged injury. He further testified that he was not aware that waivers needed to be signed for activities such as the trampoline park or that Dawn Burns had ever signed waivers on behalf of his children for activities akin to the trampoline park.
The appellate court subsequently ruled the liability agreement was not enforceable and remanded the case for trial.
|One of the judges disagreed with this ruling and wrote an interesting dissent, stating that there was agency and that he would enforce the agreement. Part of the dissent is presented here:
In my view, the facts, the relationship between the parties, and the circumstances establish that Ms. Burns operated as an agent for her husband when she signed the agreement in question. On the date in question, Mr. Burns, together with his wife and son Shamus, entered Sky Zone. He asked an employee where the bathroom was located, and he promptly proceeded to that facility. Ms. Burns remained at the counter and was informed by the Sky Zone employee that, in order to enjoy the trampoline facilities, all participants were required to execute a participation agreement.
Agreements were completed and executed at kiosks near the counter, but the employees at the counter could not view the completion of the forms from their location. Ms. Burns went to the kiosk, read and filled out Mr. Burns’ participation agreement, as well as the one pertaining to Shamus, and executed the agreements for them. The language in the relevant agreement stated that Joseph Burns had read and completed the agreement.
Ms. Burns returned to the counter, and the Sky Zone employee asked her for the names on the agreement; Ms. Burns told the employee that Joseph Burns and Shamus Burns had signed the agreement. The employee then typed the names into the computer.
Nothing would have alerted Sky Zone to the fact that Ms. Burns signed Mr. Burns’ name on his participation agreement. While Ms. Burns testified that the employee behind the counter saw her walk over to the kiosk, Sky Zone established that an employee working behind the counter cannot observe what a guest is typing due to the distance between the counter and the fact that the kiosk computer screens faced away from the counter.
At his deposition, Mr. Burns reported that he was unaware that his wife had signed the participation agreement for him. He did admit that she “usually handles that stuff.” Additionally, Mr. Burns understood that his participation agreement was completed and executed so that he could participate in Sky Zone trampoline activities, he was not upset with his wife for signing the agreement, and he admitted that, if Ms. Burns had not signed the agreement for him, he would have signed it in order to participate in Sky Zone trampoline activities. Mr. Burns voluntarily decided to utilize the trampoline at the Sky Zone establishment, and readily could have refused to enjoy that activity if he did not like the participation agreement.
Mr. Burns openly admitted that, when the family engaged in recreational activities, Ms. Burns “normally handles that stuff.” Thus, in connection with the allocation of the marital duties, Ms. Burns had the authority to handle paperwork and take care of ensuring her husband’s participation in recreational events. In this case, that process included reviewing and signing the participation agreement. These facts and circumstances, as well as the family ties and, specifically, the spousal relationship between Mr. and Ms. Burns, establish that Ms. Burns had implied authority. This authority was a component of her express authority, delegated to her by Mr. Burns, to perform the actions necessary to schedule and ensure the family could enjoy recreational activities together. Hence, I respectfully dissent from the Majority’s disposition of this matter.
Risk Management Concerns
As much as management might agree with the reasoning of the dissent, the fact remains that the Park lost the case. For this reason:
- Be certain each adult member of a party signs the waiver.
- The issue did not arise in this case, but it is always good policy to have both parents sign a waiver for a minor client.
- Train your staff to be alert to make sure all adults have signed.
Photo Credit: Thanks to Ralph Bean on Flickr.