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Understanding Waivers/Exculpatory Clauses

Waivers, sometimes referred to as exculpatory clauses, limit or prohibit claims that may arise for personal injuries or property damage. They are typically included in contracts with fitness clubs, ski resorts or other types of athletic or recreational facilities. In some cases, the waivers or exculpatory clauses are printed on tickets for admission to sporting events, such as baseball games and hockey games. The legal effect of acquiescing to the waiver is that the individual agrees to assume the risk of personal injury or property damage that may be associated with a particular activity, notwithstanding the negligence of the other party. Examples of spectators being injured and waiving their right to sue for personal injuries would be fans struck by foul baseballs, errant bats, or hockey pucks.

In a recent case, the estate of a triathlete who died while swimming in a meet was denied the right to sue the organizers for negligence in not providing adequate supervision because a valid exculpatory clause was signed. Valentino v. Philadelphia Triathlon LLC, 2016 Pa. Super. 248 (2016).

To be valid, an exculpatory clause must meet three conditions: (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 to the agreement so the contract is not one of adhesion. Moreover, a valid exculpatory clause will be enforceable only if the language is clear that a person or entity is being relieved of liability for their acts of negligence. Exculpatory provisions "violate public policy only when they involve a matter of interest to the public or the state. Such matters of interest to public or state include the employer-employee relationship, public service, public utilities, common carriers and hospitals." Seaton v. East Windsor Speedway, Inc., 400 Pa. Super. 134 (1990). The Supreme Court of Pennsylvania has consistently held that where an individual is engaged in a voluntary athletic and recreational activity an exculpatory clause in the contract for the use of facilities is not contrary to public policy. Chepkevich v. Hidden Valley Resort, LP, 607 Pa. 1 (2010). Further, an exculpatory agreement involving use of a commercial facility for voluntary athletic or recreational activities is not considered a contract of adhesion because the 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. Id.

It is not uncommon for injured parties to claim that they were unaware or did not read a waiver clause. The courts have repeatedly found that failure to read an agreement before signing it does not render the agreement either invalid or enforceable. Hinkal v. Pardoe, 133 A.3d 738 (2016).

Individuals should remain alert when attending sporting or recreational activities to read their admission tickets carefully to see if they are waiving any of their rights to pursue claims for personal injuries or damage to property. Although these provisions are not usually negotiable, the participants can take extra precautions to provide for their safety. Likewise in signing any contracts for the repeated use of fitness clubs, swim clubs or similar types of facilities, the contracts should be reviewed carefully. Individuals should consult with an attorney before signing any contracts or agreements.

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Gregory R. Gifford
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