Plaintiff raised argument in work/team building situation that they were forced to sign releasePosted: December 3, 2012 Filed under: Challenge or Ropes Course, Idaho | Tags: Climbing Wall, Coercion, Employee, Employment, Idaho, Idaho Supreme Court, Northwest Nazarene University, Release, Team Building 3 Comments
Morrison, v. Northwest Nazarene University, 273 P.3d 1253; 2012 Ida. LEXIS 82
Argument that plaintiff was forced to sign a release by an employer did not prevail, but it was taken seriously by the court.
I’ve worried and written on the issue that when a “team-building” exercise is undertaken by an employer how the issue of a release should be handled. If the
employer uses an employer or rope’s course or climbing wall release is this going to give the employee the argument that they were coerced into the act? Where does worker’s compensation arise in employers “required” team building activity? What if the release the employee signs, is one required by the employer?
A defense to a contract is coercion. You cannot be held to a contract if you were forced to enter into the contract.
In this case, the employer contracted with the defendant university to run a team-building exercise. The team-building exercise included using a climbing wall. Prior to the activity, the employer gave the employee a release prepared by the defendant to sign. The release relieved the defendant university of any liability for negligence.
While climbing the belayer, a coworker failed, and the plaintiff was injured. The plaintiff sued the university for failing to train and supervise the belayer. The university moved for summary judgment based upon the release signed by the employee.
Summary of the case
The Idaho Supreme Court first looked at the basis for release law in Idaho. In Idaho, releases are upheld unless one party owes the other party a public duty created by statute or there is an obvious disadvantage in the bargaining power between the parties. The bargaining power must be so unequal that “the party injured has little choice, as a practical matter, but to use the services offered by the party seeking exemption.”
The plaintiff argued the release was void because of the disadvantage of bargaining power between the employee and the employer. The plaintiff argued that:
· all employees were expected to sign the release
· he was not given an option not to sign the release
However, the court pointed out that at no time did the plaintiff say, “that he did not want to climb the climbing wall and that his employer ordered him to do so anyway.”
The release had a statement in it that said:
The undersigned has read and voluntarily signs this release and waiver of liability and indemnity agreement. The undersigned further agrees that no oral representations, statements or inducements apart from the foregoing agreement have been made.”
Between the facts, the plaintiff did not object to signing the release, the team-building exercise or climbing on the wall along with the statement in the release that
he had not been coerced his defense failed.
The plaintiff also argued that the release was overly broad and should not be upheld. In Idaho, the court set forth the requirements on how contracts and releases would be interpreted. “Clauses which exclude liability must speak clearly and directly to the particular conduct of the defendant who caused the harm at issue.” However, the language need not “list the specific, allegedly negligent conduct at issue.” In Idaho, that language must be broad enough to cover future negligence.
The parties to a release need not have contemplated the precise occurrence that caused the plaintiff’s injuries but rather may adopt language to cover a broad range of accidents by specifying injuries involving negligence upon the part of the defendant.
In Idaho, the language must not cover every possible accident but have language that allows the plaintiff to understand the board range of possible accidents. As I say, the life-changing ones should be listed as well as the everyday ones. On a frequency and severity scale, you want the ones with high severity and the ones with high frequency listed on your release.
The court upheld the release as a bar to the plaintiff’s claims. However, it was apparent in the decision that the court took seriously both claims raised by the plaintiff.
There was a dissent about the language of the release which would have ruled for the plaintiff on the issue of the language being broad enough to cover the injuries claimed by the plaintiff.
So Now What?
There are many states where I believe this case would not have survived. In this case if the plaintiff would have asked what happens if I don’t sign or said I don’t want to participate; the release would not have worked.
If you are running team building exercises this places you in an ethical as well as a legal conundrum. How do you protect yourself when the people coming to you
First make sure everyone knows they have an out that they can say public or privately that if they don’t want to do something, they don’t have too. That may defeat the purpose of the team-building exercise in your or the employer’s mind but the long-term costs of litigation over the issue should exceed that issue.
This also places you, the business to take a position, which is against your client. However, I believe you have to protect the participant who does not want to participate from your client. This is a dangerous conflict of interest.
Two, decide advance who will take care of the issue of what to do if someone is sued. It might be easier to have the employer indemnify you for any injuries of employees.
Employees should probably be covered under a worker’s comp policy in situations like this so you might always be subject to a subrogation claim for an injury. Releases stop subrogation claims, and indemnification does not. However, if the worker’s compensation carrier realizes they will be suing their insured because of an indemnification policy it might make a difference.
Three, work everything out in advance. Getting the release to the employer in advance of the activity was great. However, there was still a gap in what to do if someone is injured. Obviously, the employer and the university really never contemplated that someone would get injured, other than their insurance company and legal counsel telling them they must use a release. However, people get hurt all the time; bathrooms can only be avoided for so long. If you and the employer understand who insurance is going to step up and what defenses are available to both parties in advance it might eliminate some suits.
What do you think? Leave a comment.
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[…] Plaintiff raised argument in work/team building situation that they were forced to sign release […]
1) Question: Did the court find that the challenge course operators were negligent (engaged in negligent conduct, namely a belayer not belaying properly)? I ask this because it seems to me, prima facie, that using untrained belayers opens up a business to a suit.
2) It seems to me, that as a matter of course, a company could, prior to the activity, ask group members in private if they have willingly signed the release. ( I believe you are suggesting this.) It seems to me fairly clear that in an employee-employer relationship, there is unequal status, and always the possibility of coercion.
3) In the movie, the White Mile, based on a true whitewater rafting event and lawsuit, a very similar situation occurred, except several people died. But here the employees were top-level executives. In this case, employees were held to be partially (50%?) at fault for not speaking up. I don’t recall if a release was involved in that case. Jim, perhaps you can fill us in on that case.
1. Appeal was just on the motion for summary judgment so at this point in the case, when the decision was written there was no winner or loser, just the defendants defense, a release, thrown out. The claim was something like negligence against the university through its employees who were supervising at the time?? There could be more claims but the decision does not list them.
2. Maybe, but after the release is signed is normally too late. To be effective you would have to rescind the release. Rescinding a contract is legally complicated, more so based on what the contract says if it is possible or how it is to be done. Do courses actually do this, ask if everyone signed the release. Bad law because it does not work. What if someone says No. Are they thrown off the course at that point? You can’t mix “feel good” or justify with law. (I wish! LOL). So once a release is signed you have a series of legal issues to “unsign.”
3. The case was GOLDSTEIN, et al., Plaintiffs, v. D.D.B. NEEDHAM WORLDWIDE, INC., et al. It was the largest jury verdict and settlement in Outdoor Recreation. The outfitter settled and went out of business for insurance limits. The release was thrown out by the courts because it was signed in Vancouver, BC Canada. The release was thrown out as I quote from the decision: “Moreover, these individuals had already arrived in Vancouver, committed themselves to participating in the trip without having had an opportunity to review this document, and were given no notice or time to obtain any insurance coverage as required by the instrument.” This is such a critical issue that is ignored in a lot of cases.
Thanks for your questions!