Electronic releases are slowly gathering judicial precedent, if you can save paper and go electronic.
The defendant Royal Caribbean Cruises, Ltd had a ship, the Oasis of the Seas which had a FlowRider on it. A FlowRider is a wakeboard surfing device/pool/wave. The FlowRider was an amusement that was not part of the fees charged for the cruise, but required a separate sign up and fee payment by people wanting to ride the device.
The plaintiff rode the FlowRider for approximately 45 minutes, falling several times. On her last fall, she hit the rear wall and fractured her ankle. Prior to her injury, she had allegedly watched a safety video which was on the ship’s cabin TVs. She also watched other riders ride.
To ride the FlowRider the plaintiff had to read and sign an electronic release. The release was three pages long and designed so the readers had to scroll through all three of the pages before it could be signed. The plaintiff scrolled through all three pages and electronically signed the release. The plaintiff later argued she thought she was signing a room charge. (Room charges are three pages long?)
The plaintiff argued that admiralty law applied, which would prevent the use of the release and that the release was void based on equitable grounds. The decision was later overturned because the court found the admiralty statute was vague and the issue on whether the release worked in this case was an issue that should be litigated.
The admiralty law argument states that if admiralty law applies, releases cannot be used to defeat a claim. The legal relationship is similar to the common carrier‘s duty to protect passengers, because the control of the transportation is outside of the ability of the passenger to control, the common carrier owes the highest degree of care to the passengers. You are not driving; you are a passenger. You can’t slow down, turn or hit the break from the rear of the cabin.
For admiralty law to apply it must meet a two-prong test. The incident causing the harm:
(1) must have a potentially disruptive impact on maritime commerce, and
(2) the activity must bear a substantial relationship to traditional maritime activity.
The judge quickly denied that argument. He found that the cruise line industry would not be disrupted because of FlowRider injuries in the future, and the activity is purely recreational and has no relationship to navigation, piloting or shipping: “…as the FlowRider can hardly be considered essential functions of a common carrier…”
The court then looked at whether the release was valid on equitable grounds. The release used bold language to point out the different important sections. The bold language also indicated the nature and purpose of the document. One page explained the potential risks associated with the activity.
The court found it irrelevant that the plaintiff had not been provided a hard copy of the release and found the plaintiff’s attempt to characterize the release as a room charge as a failure to read the language “clearly presented to her.”
So Now What?
If you do operate in a legal environment where all or part of your activities may be held to a higher standard of care such as admiralty law or as a common carrier, you can use a release to eliminate claims for associated or side line activities. To do so you will need to identify the actual nature of the activity and why it is not associated with the higher degree of care needed by the other part of the activity.
What also proved instrumental to the court was the video which was available to everyone on the ship and which the plaintiff said she had watched when she signed the release. It is difficult to argue you did not understand the risk, when you agreed to watch a video which explained the exact risk which you are claiming is the cause of your injury.
The Waiver further provides that the passenger agrees not to use the FlowRider until she has watched a safety video. At the time of the alleged incident, the FlowRider safety video was in circulation on the stateroom channel, which is available to all passengers on their cabin TVs.
Another factor the court found important was the fact that the release could not be signed without scrolling through all three of the electronic pages.
The Waiver is three pages long and is designed so that passengers must scroll through all of its language before execution; otherwise it is simply impossible to execute the Waiver.
The issue that the release was electronic was never brought up.
Also of importance and pointed out by the court several times was the fact the plaintiff had watched other riders on the FlowRider and had watched them fall as well as having ridden the FlowRider for 40 minutes before suffering her only injury. It is difficult to argue you did not assume the risk when you clearly saw then experienced the risk.
Even though the release was held effective to stop the suit, the judge pointed out the assumption of risk issues and the fact the injury the plaintiff claimed was pointed out both in the wavier and in the video.
· Electronic Releases are accepted and used.
· Include the risks in your release as well as the necessary legal language
· Make sure the important sections are not hidden, but specifically pointed out to the participant.
· If you can, and you should, have the participant watch a video of the risks and acknowledge that they watched the video in the release.
· Be able to prove other issues or facts that support the fact the participant knew and understood the risks of the activity.
However this decision was overturned in Johnson v. Royal Caribbean Cruises, Ltd, 449 Fed. Appx. 846; 2011 U.S. App. LEXIS 25240 because of the lack of clarity in the US Admiralty Statutes. The basis for overturning the decision was:
(1) the waiver was clearly a contract with a provision that limited the liability of the owner for personal injury or death caused by the negligence or fault of the owner or the owner’s employees or agents,
(2) the cruise ship owner undoubtedly was the owner of a vessel transporting passengers between a port in the United States and a port in a foreign country, and
(3) the statute contained no exceptions regarding the type of activity in which the passenger is partaking when the injury occurs nor where the particular provision is found.
The court did not overturn the issue of whether the electronic part of the waiver was at issue.
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