We’ve come a long way since the Declaration of Independence was signed on engrossed parchment in 1776. Banks, computer software manufacturers, and online merchants, just to name a few, require us to affirm our consent to their terms and conditions through our “clicks” on their websites. Has the law caught up with this new technology?

In Stephenson v. Lawyers Athletic League, a 6’8″ former Division I college basketball player was assaulted by another player. There was trash talking during the game that culminated in plaintiff getting punched in the face while waiting to take a foul shot, sustaining a fractured jaw. Plaintiff sued the Lawyers Athletic League, the league organizer, and The Food Bank, which sponsored the team on which the assaulter played. The two key issues were whether the plaintiff expressly assumed the risk of injury and waived any claims of negligence against the League and whether his online signature of the waiver/release was valid under New York law.

The motion court held that the language of the online waiver included claims relating to the negligence of the League as well as the “actions, inactions or negligence of others…” Therefore, the court ruled that by voluntarily participating in the game and executing the waiver/release, plaintiff assumed the risk of injury including an assault by a fellow participant. An interesting sub issue was whether plaintiff could signify his consent by hitting the “submit” button on the the electronic waiver form. Citing New York’s State Technology Law, the court found plaintiff’s action to be the functional equivalent of an electronic signature and enforced the terms of the form.

Victory to the League and that’s no trash talk.

http://decisions.courts.state.ny.us/fcas/FCAS_docs/2008OCT/3001128702006002SCIV.pdf