On November 19, 2011, Joseph Belliconish, along with his wife and her two children, traveled to Irwin, Pennsylvania, to patronize Fun Slides, an indoor skate park that includes carpeted ramps, jumps and rails. As with almost all establishments of this kind, Fun Slides required guests to sign an Assumption of Risk, Waiver of Liability and Indemnification Agreement prior to participating in skating. However, rather than signing the waiver intended for adult participants, Belliconish, for reasons unknown, signed the waiver intended for a parent/guardian who is signing on behalf of a minor child. During his skating session, Belliconish made an ill-fated attempt to skate down a narrow, elevated ramp and fell to the ground, fracturing his left patella in the process.

As a result of his injury, which required surgery and physical therapy, Belliconish sued Fun Slides alleging negligence. The skate park filed a motion for summary judgment on the basis that Belliconish’s signed waiver released it from liability for any juries and that Fun Slides had no duty to warn plaintiff against the inherent risks of indoor skating.

In Pennsylvania, exculpatory documents that excuse a party in advance for it’s own negligence – like Fun Slide’s waiver – are typically not favored and are strictly construed by the courts. In order for an exculpatory clause to be valid, the clause (1) cannot violate public policy; (2) must be part of a contract that is between persons relating entirely to their own private affairs; and (3) cannot be part of an adhesion contract, in which one of the parties is not a free bargaining agent to the agreement.

After applying these factors to the facts between Belliconish and Fun Slides, the Westmorland County Court of Common Pleas found that the waiver satisfied all three requirements and accordingly granted the defendants motion for judgment.

On appeal, Belliconish argued that the language of the waiver was not clear and did not waive liability as to his own injuries because the signed waiver form was for a minor child. The court disagreed and found that the language of the waiver, strictly construed, was unambiguous and enforceable. Specifically, the court stated “although the form addresses minor participants and parent/guardians, the language specifically releases appellees from liability of claims by the person who signs the waiver. Moreover, the court noted that Belliconish signed his own name, date of birth and address on the waiver whereas Belliconish’s wife signed waivers on behalf of his minor stepchildren. Thus, the court concluded that there was simply no evidence to suggest that Belliconish signed the waiver for anyone other than himself.

Thanks to Sheri Flannery for her contribution to this post.  Please write to Mike Bono for more information.