Make sure the person signing the release is the person you have on your trip.

Mother signed her son up for a trip and claimed she signed the release. This invalidated a change of venue because the forum selection clause was not at issue.

Bonnen v. Pocono Whitewater, Ltd., Civil Action 3:20-cv-01532 (M.D. Pa. Sep 17, 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 in its conduct

Defendant Defenses: Release containing a forum selection clause

Holding: for the plaintiff

Year: 2021

Summary

The forum selection clause in the release was not upheld because the mother of the deceased claimed she signed the release. Since the deceased did not sign the release the forum selection clause was not valid.

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.

The defendant has filed a motion to dismiss seeking dismissal on the ground that a forum selection provision contained in a release of liability purportedly signed by the decedent sets the Court of Common Pleas of Carbon County as the appropriate and agreed-upon venue for any dispute “aris[ing] out of th[e] agreement or otherwise between the parties.”

A review of the amended complaint reflects that the plaintiff did not plead whether the release of liability has any relevance to the incident. Rather, the plaintiff has pled that the defendant was negligent, grossly negligent, and reckless in its conduct in a variety of several itemized instances. 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..

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

The decision in this case was two paragraphs long. Since the mother claimed she signed the release for the deceased, the validity of the release and the forum selection clause it contained were at issue.

Turning to the motion to dismiss based on enforcement of a forum selection provision under Fed.R.Civ.P. 12(b)(6), when the parties’ agreement contains a valid forum selection clause designating a particular forum for settling disputes arising out of their contract, a Rule 12(b)(6) dismissal is a permissible means of enforcing that forum selection clause.

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. Because the validity of the form selection clause remains in doubt, the defendant’s preferred forum-the Carbon County state courts-is not controlling. Moreover, Pennsylvania law holds that such a release agreement cannot bind non-signatories.

Since there was a dispute as to who signed the release containing the forum selection clause, the issue of the validity of the release and the clause were not something the court could ignore.

So Now What?

Signing releases electronically makes paperwork non-existent and allows the guests to see and sign the release in advance of any trip. This makes sign up or check in at day trips a breeze.

At the same time, it allows for people to argue they did not sign the release. Consequently, you need to modify your release to catch these issues and prevent them.

One way is to verify that the name signing the release is the name on the credit card used to pay for the trip or activity. If not flag the release and have a paper or new electronic version signed at check in.

You can also use the language in the credit card agreement to verify the fact that the person signing the release is the person who owns the credit card.

Another issue is one spouse signing a release online for both spouses and minor children. Dependent upon the state, you make have one spouse sign up online, the second spouse and if eligible minor children sign a paper copy at check in.

No matter what make sure the number of people signing up for your trip or activity are the ones in front of you checking in and you have the correct name on a release for each person checking in.

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Jim Moss

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers, avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor

Outdoor Recreation Insurance, Risk Management, and Law

Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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By Recreation Law    Rec-law@recreation-law.com    James H. Moss

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