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.

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

CAROLINE BONNEN, et al., Plaintiffs,
v.
POCONO WHITEWATER, LTD., Defendant.

Civil Action No. 3:20-cv-01532

United States District Court, M.D. Pennsylvania

September 17, 2021

MEMORANDUM

JOSEPH F. SAPORITO, JR., U.S. Magistrate Judge.

 This diversity action is before the court on the defendant’s motion to dismiss the amended complaint under Fed.R.Civ.P. 12(b)(6) based on enforcement of a forum selection provision. (Doc. 15). The action arises out of an incident where the plaintiffs decedent died as a result of being thrown from a raft while Whitewater rafting on the Lehigh River in Carbon County, Pennsylvania. For the reasons set forth herein, we will deny the motion.

 I. Statement of 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 (Doc. 15), 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.” (Doc. 14-5).

 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. (Doc. 9 ¶ 31). 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. (Doc. 20 passim; Doc. 21, at 3-5). The plaintiff maintains that it was she who signed the decedent’s name, without authority to contract on behalf of the decedent. (Id.).

 The motion has been fully briefed by the parties and is ripe for disposition. (Doc. 16; Doc. 21).

 II. Legal Standard

 Rule 12 (b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for “failure to state a claim upon which relief is granted.” Fed.R.Civ.P. 12(b)(6). “Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiffs claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In deciding the motion, the court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellab, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although the Court must accept the fact allegations in the complaint as true, it is not compelled to accept “unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegations.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevy, 481 F.3d 187, 195 (3d Cir. 2007). Nor is it required to credit factual allegations contradicted by indisputably authentic documents on which the complaint relies or matters of public record of which we may take judicial notice. In re Washington Mut. Inc., 741 Fed.Appx. 88, 91 n.3 (3d Cir. 2018); Sourovelis v. City of Philadelphia, 246 F.Supp.3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F.Supp.2d 579, 588-89 (W.D. Pa. 2008).

 III. Discussion

 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. Salovaara v. Jackson Nat’l Life Ins. Co., 246 F.3d 289, 298 (3d Cir. 2001). Podesta v. Hanzel, 684 Fed.Appx. 213, 216 (3d Cir. 2017); see also Eureka Res., LLC v. Hoden Roots LLC, ___F.Supp.3d.___, 2021 WL 3545068, at * 1 & n.5 (M.D. Pa. Aug. 11, 2021).

 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. See Oak Street Printery LLC v. Fujifilm N. Am. Corp., 895 F.Supp.2d 613, 619 (M.D. Pa. 2012). Because the validity of the form selection clause remains in doubt, the defendant’s preferred forum-the Carbon County state courts-is not controlling. See Id. Moreover, Pennsylvania law holds that such a release agreement cannot bind non-signatories. See Valentino v. Philadelphia Triathlon, LLC, 150 A.3d 483, 497 (Pa. Super. Ct. 2016) (noting that a statutory “wrongful death claimant possesses an independent, non-derivative right of action” that cannot be subjected to a forum selection clause, signed by the decedent, without the claimant’s consent); cf. Buttermore v. Aliquippa Hospital, 561 A.2d 733, 736 (Pa. l989)(holding that a wife’s consortium claim was an independent cause of action, and thus not barred by a settlement agreement to which she was not a signatory). Therefore, construing all well-pleaded facts as true, as we must, we are constrained to deny the motion to dismiss.

 An appropriate order follows.