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.