judicialsupport

Legal Writing for Legal Reading!

Archive for the category “Musings: Personal Injury”

A Collection of Personal Injury Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of personal injury legal principles.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

Musings:

My Articles:

Advertisements

Local Ice Rink Tries to Put Law Suits on Ice

My nephew recently had a birthday and, because he is an avid ice hockey player, he chose to celebrate it at a local ice rink.  Before I get to the meat of this post let me say that I had not ice skated in at least ten years before that party and I was seriously out of practice!  By the end of the party I felt I was back to some semblance of respectability, but my back, ankles, and knees are clearly not as young as they once were.

Anyway, the ice rink facility the party was held at is very large and well equipped for such a party.  The facility is so large that there are two ice rinks separated by a common area for eating and lacing up one’s skates.  Next to one of the rinks are a series of smaller rooms where people gather for the parties that are held.  As one may expect from a kid’s party, much pizza, cake, and Coca-Cola are consumed in these rooms.

Part of the party process requires anyone intending to participate in ice skating to receive a sticker which identifies him/her as a guest of a party.  The sticker is a white paper with the name of the party on a piece of wax paper.  The person who receives the sticker peels off the sticker from the wax paper and puts the sticker on his or her shirt as identification on the ice rink.

All seemed rather typical to me for such a party until I noticed something peculiar.  While I was enjoying a slice of pizza, one of the kids at the party peeled off his sticker from its wax paper backing and threw the wax paper onto the table in front of me.  I glanced down at the wax paper and noticed that it was covered with text.  Curiosity got the best of me, so I picked up the wax paper and read all of the text written on it, which read as follows:

WAIVER OF LIABILITY

ASSUMPTION OF RISK:

I am aware that ice skating, hockey and/or broomball activities involve inherent risks dangers and hazards which can result in serious personal injury or death.  I am also aware that the ice skating rinks and arenas contain dangers that can cause serious injury or death.  I hereby freely agree to assume and accept all known and unknown risks of injury arising out of ice skating, hockey and/or broomball activities.  I recognize and acknowledge that risks of ice skating, hockey and/or broomball can be greatly reduced by: taking lessons, abiding by the Responsibility Code and using common sense.

RELEASE AND WAIVER OF CLAIMS AGREEMENT:

For allowing m e to participate in public skating, hockey and/or broomball activites at the [ice rink], I agree to the fullest extent permitted by law, as follows: 1) TO WAIVE ALL CLAIMS that I have or may have against the [ice rink] and its owners and affiliates, arising out of public skating, hockey and/or broomball.  2) TO RELEASE the [ice rink] and its owners and affiliates from all liability for any loss, damage, injury or expense that I (o my next of kin, parent, guardian estate) may suffer, arising out of ice skating, hockey and/or broomball activities from any cause whatsoever including negligence or breach of contract on the part of the [ice rink] in the operation, supervision, design or maintenance of its facility.

So, basically, on the back of the wax paper for the identification sticker was a rather detailed waiver which protects the ice rink from all liability for injuries sustained there.  When I saw this, I instantly knew I had to write a blog on it because this waiver seemed so ridiculous to me.

I find this waiver to be of dubious enforceability.  Waivers must be accepted knowingly.  The identification stickers are merely provided by the ice rink to the person in charge of the party who then distributes them to the people at the party.  No one at the ice rink indicated that a waiver of liability is written on the back of the stickers.  Furthermore, the waiver is written on what is ostensibly trash.  The people there had no idea that the back of the stickers had text on them, let alone something as vitally important as a waiver of liability.  Instead, the people at the party – as one may expect – simply peeled off the stickers from the wax paper and threw out the wax paper.  I would have never noticed it myself had the kid at my table not, by chance, tossed his trash in front of me.  In addition, the waiver of liability is received after the contract was formed and payment was made for the use of the ice rink.  So, no consideration was exchanged for the waiver.  A waiver cannot simply be thrust onto someone after the contract was formed and payment made.  Even if it could be argued that there was consideration for the waiver between the ice rink and the person who paid for the party, there was certainly no consideration between the ice rink and a guest of the party.

A waiver of this sort is basically an exculpatory clause.  When it comes to exculpatory clauses, they are to “be strictly construed with every intendment against the party seeking their protection.” Phillips Home Furnishings v. Continental Bank, 231 Pa. Super. 174 (1974) citing Kotwasinksi v. Rasner, 436 Pa. 32 (1969). Furthermore, an exculpatory clause will not be valid if there is a disproportionate bargaining power between the parties to the contract at issue. Id. citing Hennigsen v. Bloomfield Motors, Inc., 161 A. 2d 69 (NJ, 1960).  In addition, an exculpatory clause that a Court is unwilling to enforce is where the terms of a contract are unwilling to be altered by its maker.  In other words, a contract where the other party (i.e.: not the drafter of the contract) “has no bargaining power and must accept [the] terms” presented to him and is “powerless to alter” them, with rejection of the contract as the only alternative to executing the contract.  There is no meeting of the minds in this sort of contract negotiation. Galligan v. Arovitch, 421 Pa. 301 (1966).  In addition to the relationship of the parties to a contract, the Court also analyzes whether a party to a contract were “aware of and understood the terms of the release before his agreement can be deemed a particularized expression of the intent to assume risk.” Wang v. Whitetail Mountain Resort, 933 A.2d 110 (Pa.Super., 2007) citing Chepkevich v. Hidden Valley Resort, 911 A.2d 946 (Pa.Super.2006).  Finally, “[i]n determining whether a releasing party had such awareness and understanding, we consider: 1) the release’s placement in the document; 2) the size of the release’s print; and, 3) whether the release is highlighted in some fashion.” Id.,citing Beck-Hummel v. Ski Shawnee, Inc., 902 A.2d 1266, 1269 (Pa.Super.2006)

Based on the above, I think it is pretty clear that the language located on the back of the sticker is problematic. The contract relationship is obviously imbalanced.  A person seeking admission to the ice rink has no choice but to accept the exculpatory clause else he cannot gain access.  Further, the exculpatory clause is printed on what amounts to a piece of trash.  The guest cannot bargain and negotiate with the person at the ice rink’s office about the terms of the clause and try to change them.  In fact the person at the office likely has no authority at all to act on the ice rink’s behalf in order to change or alter the language on the sticker even if he wanted to do it.  So, obviously, there is a “take-it-or-leave-it” aspect to the sticker.  In terms of whether the recipient of the sticker was aware of and understood the terms of the exculpatory clause, I think even the average observer can see that there is likely no awareness of this clause, let along comprehension, at the time of entry into the rink.  Who reads what is basically trash?  No one gets the language mentioned or explained by the person at the ice rink’s office.  I would guess that the person at the office has likely never read it either or knows what it means.  What non-lawyer knows what an exculpatory clause is or how it works and how it could effect him?  Remember, this is all in the context of a busy kids’ party and being handed a sticker for one’s shirt amid the hustle and bustle at an ice rink.  Who is taking the time to read the wax paper on the back of a sticker, let alone understand the technical legal jargon on it?

I wrote a similar post to this one a couple of summers ago about my trip to the Philadelphia Zoo.  The Zoo tries to do similar things as this ice rink, which is to sneak in an exculpatory clause on the back of an admission ticket after the ticket is purchased which means, therefore, there is no opportunity to read it at the time of purchase.  You can read more about that clause here.

So, suffice it to say, I think the inclusion of the exculpatory clause on the back of the ice rink’s identification sticker is pretty sneaky.  I do not think the clause is particularly enforceable and is of questionable legitimacy in contractual terms.

The Philadelphia Zoo Tries to Put Bars Around its Visitors

I just purchased a season pass to the Philadelphia Zoo last weekend.  We took a trip to the Zoo last year and my older son loved it and so we decided to try to go regularly this year as it is a nice place to be outside and do something and, for my son, a nice place to do something fairly interesting and educational that does not involve video games, death defying stunts, or tormenting his younger brother.  The fact that he spent an hour staring at a gorilla, which has sparked something of a gorilla obsession for him, is a little weird, but so be it; everyone has their “things”!  At least it led to an evening watching the original King Kong movie after our visit to the Zoo, which is one of my favorite movies.

My visit to the Zoo last weekend inspired this post because of very curious language I discovered on the back of my admission ticket when I got home.  The ticket to park at the Zoo had the normal disclaimers more-or-less about how the Zoo is not responsible for damage done to one’s car in the lot and that the ticket only entitles someone to park there in order to visit the Zoo for the day.  I did not find any of this language questionable or objectionable; indeed, I found it pretty typical.

The back of the admission ticket was what struck me.  The language on the back of the admission ticket says the following: “By accepting this ticket guest agrees to hold the Zoo and its employees harmless and waive any claim against the Zoo and its employees for bodily injury to guest or damage to guest’s property even if caused in whole or in part by the negligence of the Zoo or its employees.”

This language is very problematic in many ways.  Language like the above is commonly known as an “exculpatory clause” which, perhaps obviously, tries to exculpate one party from liability or guilt from certain actions or instances.

First of all, when it comes to exculpatory clauses, they are to “be strictly construed with every intendment against the party seeking their protection.” Phillips Home Furnishings v. Continental Bank, 231 Pa. Super. 174 (1974) citing Kotwasinksi v. Rasner, 436 Pa. 32 (1969). Furthermore, an exculpatory clause will not be valid if there is a disproportionate bargaining power between the parties to the contract at issue. Id. citing Hennigsen v. Bloomfield Motors, Inc., 161 A. 2d 69 (NJ, 1960).  In addition, an exculpatory clause that a Court is unwilling to enforce is where the terms of a contract are unwilling to be altered by its maker.  In other words, a contract where the other party (i.e.: not the drafter of the contract) “has no bargaining power and must accept [the] terms” presented to him and is “powerless to alter” them, with rejection of the contract as the only alternative to executing the contract.  There is no meeting of the minds in this sort of contract negotiation. Galligan v. Arovitch, 421 Pa. 301 (1966).  In addition to the relationship of the parties to a contract, the Court also analyzes whether a party to a contract were “aware of and understood the terms of the release before his agreement can be deemed a particularized expression of the intent to assume risk.” Wang v. Whitetail Mountain Resort, 933 A.2d 110 (Pa.Super., 2007) citing Chepkevich v. Hidden Valley Resort, 911 A.2d 946 (Pa.Super.2006).  Finally, “[i]n determining whether a releasing party had such awareness and understanding, we consider: 1) the release’s placement in the document; 2) the size of the release’s print; and, 3) whether the release is highlighted in some fashion.” Id.,citing Beck-Hummel v. Ski Shawnee, Inc., 902 A.2d 1266, 1269 (Pa.Super.2006)

Based on the above, I think it is pretty clear that the language located on the back of the Zoo’s admission ticket,  in very small print (albeit all in capitals), is problematic. The contract relationship is obviously imbalanced.  A person seeking admission to his local zoo has no choice but to accept the exculpatory clause else he cannot gain access.  Further, the exculpatory clause is printed on an existing ticket which is handed to the Zoo’s guest upon entry.  The guest cannot bargain and negotiate with the person at the Zoo’s ticket window about the terms of the clause and try to change them.  In fact the person at the ticket window likely has no authority at all to act on the Zoo’s behalf in order to change or alter the language on the ticket even if he wanted to do it.  So, obviously, there is a “take-it-or-leave-it” aspect to the admission ticket.  In terms of whether the recipient of the admission ticket was aware of and understood the terms of the exculpatory clause, I think even the average observer can see that there is likely no awareness of this clause, let along comprehension, at the time of purchase.  Who reads the ticket when it is handed to him?  Who gets the language mentioned or explained by the person at the ticket window?  I would guess that the person at the ticket window has likely never read it either or know what it means.  What non-lawyer knows what an exculpatory clause is or how it works and how it could effect him?  Remember, this is all in the context of waiting in a line with dozens of other people at a zoo ticket window with children (likely making some sort of ruckus) in the hot sun in the middle of the day.  Who is taking the time to read the ticket let alone understand the technical legal jargon on it?  Speaking as a parent, I am lucky to be able to receive the ticket from the window and cram it in my pocket in a reasonable way while in line let alone read it intelligently.

Second, even if none of the above applied, I think there are serious contractual issues at play.  The basics of a contract is that one party makes the offer of terms while another accepts them in consideration for some sort of exchange of goods and/or money.  The exchange of money for admission to the Zoo is a type of contract.  The Zoo is trying to append the exculpatory clause as a term of their offer of admission in exchange for one’s money.  The problem with that is that the exculpatory clause is not ever disclosed to the guest until after the transaction is made (i.e.: money for ticket) and once the transaction is made, the Zoo is clear that (from its website and the back of the admission ticket) “[a]ll ticket sales are final and may not be resold. No exchanges or refunds for any reason including inclement weather.”  The transaction for the ticket is as one may expect: the guest stands in long line outside (in whatever weather there is on a given day) with multiple other people (most of which have their share of rambunctious children including the guest purchasing the ticket) who, after shouting through a little porthole in a window with poor acoustics, receives tickets in exchange for money through a little slot at the bottom of the window.  The interaction between the guest and the ticket agent is one which merely involves inquiring into how many people (and their respective ages) for whom the guest would like admission tickets and the payment for the tickets.  It is not until after the tickets are purchased – for which there is no refund – that the guest learns that suddenly he has agreed to an exculpatory clause.  Therefore, this clause was not bargained for by the guest as he had no idea he was buying the clause along with his ticket as the small print on the back of the ticket is the only place where it exists and is communicated to the guest and that all takes place after a non-refundable purchase.  Indeed, not even the “tickets” portion of the Zoo’s website (seen here) has any mention of the exculpatory clause (though they are sure to make sure the reader knows that the purchase is non-refundable on the same page).  On the Zoo’s website, the exculpatory clause language is hidden on the “print tickets” page here, which is a page that one would not look at if purchasing tickets at the window (as I did).

One final note before I conclude.  Children under two years old require no ticket so I suppose one would presume that, even if enforceable, the exculpatory clause does not apply to them, which I find curious in itself.

So, suffice it to say, I think the inclusion of the exculpatory clause on the Zoo’s admission ticket is pretty sneaky and, if I may say so, pretty sleazy, especially considering it purports to exculpate its own negligence.  I do not think the clause is particularly enforceable and is of questionable legitimacy in contractual terms.

The Grounds for the Famous McDonald’s Coffee Case

Most people have heard of the 1994 case of the old woman spilling McDonald’s coffee in her lap, being severely burned in the process, suing McDonald’s over it, and securing millions of dollars after a verdict in her favor.  My law school career began in 1999 and, I must say, when non-lawyers speak to me about the law, this McDonald’s coffee case, often to the exclusion of all the famous, important, and significant cases that the Courts have heard over the years, decades, and centuries, is routinely mentioned, especially as some sort of lament over the perceived abuse of the legal system, and using tort law as a substitute for playing the lottery.

There is just so much misconception over this case that any conversation about it becomes a sort of deconstruction of previously held misconceptions – generally thanks to the media and widespread public perception – more than it is about the legal significance of the case.

Before reading this post and/or watching the video below, did you know:
(1) the coffee was heated 30 degrees hotter than a home brewer can heat coffee?

(2) the woman burned was not driving and her car had no available cup holders?

(3) the woman did not make millions but only about $600,000, much of which went to pay her very large medical bills?

(4) the woman suffered third degree burns?

(5) McDonald’s was aware of the fact that literally hundreds of people had been similarly burned by their coffee over the 10 year period prior to the famous 1994 case and took no action to make their coffee safer?

Once all of the facts are known, it becomes clear that this case is far from being the poster child of the abuse of the legal process and is hardly an example of people looking to “frivolous” tort cases to become overnight millionaires.

For a great look at the details of this case – and some photographs of the burns themselves – check out this video posted on upworthy.com:

You can find it here as well: http://www.upworthy.com/ever-hear-about-the-lady-that-spilled-coffee-on-herself-at-mcdonalds-then-sued-for-millions?g=2&c=ufb1

Also, here is the wiki page for the case which includes the official caption and citation and other details which may be interesting:  http://en.wikipedia.org/wiki/Stella_Liebeck

Post Navigation