New way to beat a release, lie and say you signed it not your son.

However, fraud in signing a contract is usually not enough to get the agreement thrown out. This should be appealed.

Bonnen v. Pocono Whitewater, Ltd. (M.D. Pa. 2021)

State: Pennsylvania, United States District Court, M.D. Pennsylvania

Plaintiff: Caroline Bonnen, et al

Defendant: Pocono Whitewater, Ltd

Plaintiff Claims: negligent, grossly negligent, and reckless

Defendant Defenses: Release which contained a forum selection clause

Holding: For the Plaintiff

Year: 2020

Summary

The facts are sparse in the opinion and semi speculative here. A mother allegedly signed her son up for a Whitewater raft trip. The son died on the trip after falling out of the unguided raft. The rafting company tried to dismiss the claims due to the jurisdiction and venue clause in the release but was denied because the mother signed the release, not the son.

This reads like the release was signed online, but I could not find an online release for the defendant. With a search, I did find a PDF of a release for the defendant which did have jurisdiction language matching the defendants.

Facts

This is a motion to dismiss because the lawsuit was filed in a county that was not the county identified in the release. Consequently, since it is a simple motion to dismiss the order is light on facts.

On September 1, 2019, Christopher Santana was one of nine occupants in an eight-person raft, none of whom were guides, who were Whitewater rafting on the Lehigh River in Jim Thorpe, Carbon County, Pennsylvania. After the raft hit a rock, Santana was thrown from the raft into turbulent and rocky waters. His foot became lodged between rocks causing him to become submerged underwater, which resulted in his death by drowning. The plaintiff, Caroline Bonnen, individually and as Administratrix of the Estate of Christopher Santana, brings this wrongful death and survival action against the defendant, Pocono Whitewater, Ltd.

In her opposition papers, the plaintiff contends that the release of liability, which includes the forum selection clause contained therein, is invalid because the decedent did not execute the release. The plaintiff maintains that it was she who signed the decedent’s name, without authority to contract on behalf of the decedent.

So, you now have as many questions as you do answers.

Analysis: making sense of the law based on these facts.

I’m not sure how an attorney can plead a lie as a defense to a claim to dismiss, but that is probably just me.

The lawsuit was filed in Federal District Court for the Middle District of Pennsylvania. The deceased or his mother had signed a release which stated any lawsuit had to be filed in Carbon County state court.

The defendant raft company filed a motion to dismiss in the court stating the lawsuit had been filed in the wrong place, based on the contract.

Normally, these are granted and the court requires the plaintiff to file within so many days or months. The only real issue always is if the statute of limitations has passed by the time the motion is filed, does the plaintiff have a case.

Here though, the mother of the deceased, the plaintiff, said the release was not valid because it was not signed by the deceased. She signed it.

The court bought this argument, which really it had no choice because there were not facts that countered the argument.

Here, the plaintiff disputes the validity of the release containing a forum selection clause because it was allegedly signed in the decedent’s name by his mother, the plaintiff, without authorization or consent by the decedent. Based on the factual allegations by the parties, we are unable to conclude that the decedent unambiguously manifested his assent to the forum selection clause, and thus we are unable to find that the forum selection clause is valid.

The case even gets wilder with the next statement by the court.

Moreover, Pennsylvania law holds that such a release agreement cannot bind non-signatories. Therefore, construing all well-pleaded facts as true, as we must, we are constrained to deny the motion to dismiss.

Sure, a contract cannot be used to hold a non-signatory to an agreement. I cannot sign a contract signing you up for the beer of the month club. However, in most cases, when there is fraud involved things change. Here the mother fraudulent signed the contract on behalf of her son.

Should she be allowed to profit from her fraud?

Yes, she lost a son, but this; I think, is not right.

So Now What?

  1. The release needed better language that stated that the person signing the document was the person identified in the document.
  2. The contract or release should have also stated that the release binds the entire family of the signor to the terms of the release.

I did a Google Search and found a PDF of a release for the defendant dated around the time of the accident. If that is the release that was used, it might not work anyhow. It was a half-page form that would have a difficult time holding up to Pennsylvania law. However, it also was a PDF so it would require an actual signature.

So here again, the plaintiff could use a release that was lacking a few issues to keep the lawsuit going. I suspect this is not the last argument over this release we will read. At least, I hope not.

The website states there will be professional raft guides, the allegations claim no guides were in the boat.

What do you think? Leave a comment.

Who am I

Jim Moss

I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry

I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses

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Copyright 2022 Recreation Law (720) 334 8529

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James H. Moss

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