Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.Posted: February 8, 2016
Release lacked one clause and consequently, failed to protect the defendant sending the case to trial.
State: Pennsylvania: Common Pleas Court of Lehigh County, Pennsylvania, Civil Division
Plaintiff: Nicholas Weinrich
Defendant: Lehigh Valley Grand Prix Inc, incorrectly Identified As Lehigh Valley Grand Prix LLC
Plaintiff Claims: Negligence
Defendant Defenses: Release & Premises Liability
Holding: For the Plaintiff
This is an interesting case. The activity is outside the normal area of the law covered by this site; however, the legal issues are very important to everyone reading these posts.
The plaintiff was injured driving a go-kart around the defendant’s go-kart track. This was the second time the plaintiff had been at the go-kart track; the first time was about six months prior.
While driving around the track a piece of plastic from the guard rail was sticking into the track. The plaintiff drove past it and it hit is leg giving him a two-inch laceration.
The plaintiff had signed a release the first time he attended the go-kart track which was six months prior to the date of his injury. He did not sign one the second time when he was injured. The defendant stated that people who have already signed a release are not asked to sign one again.
The defendant filed a motion for summary judgment based on the release the Pennsylvania Premises Liability Act. The act stated that a defendant’s business did not owe a duty to the business invitee for open and obvious hazards.
Analysis: making sense of the law based on these facts.
First, the court reviewed the requirements for a release to be valid in Pennsylvania.
First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly; each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.
The next issue was whether a release for recreational issues violates public policy in Pennsylvania. Again, releases for recreational activities do not violate Pennsylvania public policy concerns. Participants are free to go to any recreational facility or none at all.
In the context of recreational activities, releases generally function as a bar to liability because the party executing the release is free to choose whether or not he or she wants to participate in the activity. Such releases do not contravene public policy. However, where the injury was caused by recklessness or gross negligence, enforcement of the release would contravene public policy and the releases are thereby rendered void under those circumstances.
The court then got into the real issue. The plaintiff argued the release was not valid because he had signed the release six months prior to the date of his injury. The issue then resolved around when a contract terminates. Normally, a contract terminates based on a date or time frame which is based on language within the contract itself. This release had no language as to how long the release was supposed to last. “The salient issue in evaluating the instant waiver is that the language on the form neither limits the time for its applicability nor specifies the event or occasion to which it applies.”
Generally, time frames are to be determined by the parties to the agreement. If not by the parties, then the language of the release is to be examined for an indication of time. Failing language in the release terminating the agreement, the court can infer from the parties intended performance, which must be within a reasonable amount of time.
Since the release had no language on termination, then the court determined the release terminated within a reasonable amount of time. Since this was not defined, then a term, phrase or clause was missing from the release.
If an essential term is left out of a contract, the court can infer the term. (An essential term is always the one that the issue resolves around in court.)
In this case, the release Plaintiff executed is silent as to duration. Based on the foregoing case law, the Court determines that this is an essential term which is left out of the agreement. Therefore, a reasonable term is to be imposed instead of invalidating the release as a whole. Id. Because contract principles further dictate that contractual duration is presumed to be for a reasonable amount of time in the absence of a specified time for performance, the parties’ release must therefore be deemed to apply for a reasonable period of time.
However, since the reasonable period of time is not set forth by the industry, parties, the release or the law, that time period must be determined by the factfinder. The fact finder when a case has been set for a jury trial is the jury. “What constitutes a reasonable time, however, is generally a question of fact to be resolved by the factfinder.”
Consequently, Defendant’s argument in support of summary judgment based on the existence of a release must be denied. Summary judgment is only appropriate where there is no genuine issue of material fact. Whether six months following the execution of a release for a recreational activity constitutes a reasonable amount of time is a question more appropriately posed to a finder of fact. The reasonableness of the duration in question is therefore, a genuine issue of material fact and summary judgment is inappropriate.
The simple phrase stating the release is valid for a year or more sent this case back to the jury for trial.
The other issue argued by the defendant was the definition of a business invitee which as defined did not create liability on the part of the defendant. A landowner does not owe a duty for open and obvious conditions on the land. In this case, the open and obvious condition would be the piece of plastic sticking out into the track.
As a general rule, possessors of land are not liable to invitees for physical harm caused to them by activities or conditions on the land whose danger is known or obvious to them unless the possessor should anticipate the harm despite such knowledge or obviousness.
The issue of open and obvious then was reviewed as it is defined in Pennsylvania.
A danger is deemed to be “obvious” when “both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment.” “For a danger to be ‘known,’ it must not only be known to exist, but … also be recognized that it is dangerous and the probability and gravity of the threatened harm must be appreciated.”
Generally in Pennsylvania, a landowner has no duty to protect business invitees from open and obvious dangers. “In the context of amusement facilities, Pennsylvania courts have held that there is no duty to protect participants against the typical risks attendant to those activities.”
However, here again whether something is open and obvious in this case, a plastic part peeling off a guard rail is something that must be determined by the factfinder.
Nonetheless, the question of whether conditions on land were, in fact, open and obvious is generally a question of fact for a jury to decide. Id. It may be decided by a court where reasonable minds could not differ as to the conclusion.
Because in both cases, the release and the definition of the law required completion by the fact finder, the case was sent back for trial.
Summary judgment would not be appropriate on these grounds because there are factual issues regarding constructive notice and whether there were appropriate steps undertaken by Defendant. Testimony before a factfinder is necessary to assess whether and to what extent the employees were aware in advance of the existence of the dangerous condition. These are all factual questions to be resolved by a factfinder.
So Now What?
Here again, the release failed either because of a lazy program, an ineffective system or with both those failing a release that is missing components.
Either every time someone comes to your facility, event or business, they sign a release, or you have a system that tracks when people have signed the release and not and a release that covers that period of time.
At a minimum, you should have someone sign your release yearly. Season’s change, activities change and you might change your business, program, activities, anything and everything. That change may need to be placed in your release and at least follows up on.
This change in your program or start of the new year or season is the perfect opportunity to have an attorney review your release. Inform your attorney of any changes in your operation. Have your release checked to make sure it will do the job you and your insurance company expect it to do.
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By Recreation Law Recfirstname.lastname@example.orgJames H. Moss
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