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MASS DLA ARTICLE

February 8, 2018

    A recent Superior Court decision limiting a recreational facility’s ability to enforce the terms of a participant agreement does not affect substantive waiver law in Massachusetts. However, it should cause recreational facilities to re-examine their programs and waiver agreements.

    In Elmer Cruz, et al v. Jump City Everett LLC, et al, Suffolk Superior Court, No. 1784-CV-01016-B, the plaintiffs filed a negligence action that arose out of an injury sustained at a trampoline facility. Prior to using the trampoline, Mr. Cruz, like all participants, was required to execute an electric document entitled “Participant Agreement, Release and Liability Wavier.” This Participant Agreement contained an arbitration provision.

    The facts surrounding the execution of the Agreement are critically important. Mr. Cruz does not speak English. Upon his arrival at the facility, he was approached by an English speaking worker. Mr. Cruz did not understand the words spoken to him. Plaintiff’s 15 year old son translated and told him that the attendant said that they had to go to a computer screen in order to enter the facility. The group went directly to the screen, but Mr. Cruz could not read the words on the screen. His son input the information, which enabled them to enter the facility and use the trampoline. Mr. Cruz concedes that that he stood next to his son during this process. However, Mr. Cruz insists that he did not authorize his son to release any of his rights.

    The defendants moved to enforce the arbitration clause in Agreement. The plaintiffs opposed the motion arguing that the arbitration clause is unenforceable and unconscionable. Specifically, the plaintiffs argued that:

    1. the clause is not sufficiently clear;
    2. the clause is not sufficiently prominent;
    3. the one year limitation render is unconscionable;.
    4. the defendants’ should not be able to enforce a document where they knew the patron did not speak English and could not understand the document.

    The Court denied the defendants’ motion stating that there are questions that must be resolved by the by the jury before a determination could be made regarding enforceability. The Court also held that the defendants did not establish as a matter of law that the electronic signature of his son was binding upon the plaintiff. The Court rejected defendants’ apparent authority argument given that Mr. Cruz uttered no words to signal his assent to the terms. The Court also rejected defendants’ ratification argument.

    It is well established that, under Massachusetts law, releases against negligence liability are enforceable. See e.g. Sharon v. Newton, 437 Mass. 99, 105 (2002)(citation omitted) (“in the absence of fraud a person may make a valid contract exempting himself from any liability to another which he may in the future incur as a result of his negligence or that of his agents or employees acting on his behalf.”). Thus parties may enter into agreements that waive potential future tort remedies, including the right to recover for injuries resulting from a defendant’s negligence.

    Practical considerations for those drafting Participation Agreements containing a Waiver of Liability have always included the use of clear language, conspicuous placement of the waiver language and the proper naming of all parties to the release.

    Cruz is a fact specific decision. Nothing in the decision changes the well-established law enabling Massachusetts Courts to enforce clear, prominent language in Recreational Release agreements. In the aftermath of Cruz, facilities who rely upon the protection of Participation Agreements with waiver language should:

    1. review their programs and their customer base;
    2. make sure that they understand the needs of their customers;
    3. look closely at their waiver agreements to ensure that they are presented in a form that can be easily understood by their customer base.
    4. adjust the agreements so that they are clear to their customers; and
    5. prominently display all waiver language.

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