A well-written release is not enough; you have to present it to the participant in a way that the participant knows what they are signing.
James H. (Jim) Moss, JD
Attorney and Counselor at Law, Specializing in Outdoor Recreation and Adventure Travel Law
Then you have to present the information to the court, so the court clearly sees what the participant saw, same size, same way, same color.
State: New York; Supreme Court of New York, Kings
Plaintiff: Richard E. Scotti and Joseph Russo
Defendant: Tough Mudder Incorporated and Tough Mudder Event Production Incorporated
Plaintiff Claims: Negligence
Defendant Defenses: Arbitration Agreement and Release
Holding: For the Plaintiff
Year: 2019
Summary
A release is not a piece of paper to be written on a whim and thrown on line. Here the court blasted the defendant because the release was presented on-line in a bad way, and it was presented in court in a worse way.
Releases, Indemnification Agreements, Arbitration Agreements, etc., must be noticed to the consumer. Meaning the consumer MUST understand they are signing a legal agreement, they have to them be used online in a way that the consumer or guest has no doubt that they are signing one, and you must be able to prove that.
Besides, New York does not allow the use of a release!
Facts
The plaintiffs were both injured in a Tough Mudder event on the salmon ladder. The plaintiff’s sued and the defendant Tough Mudder answered and filed this motion to compel arbitration. The release contained an arbitration clause.
The release signed by the participants was signed online. The participants went through a registration page, part of which was a window where the release was contained. To read the release, you had to scroll through the window separately from the rest of the page. The release was in a window in the page.
The defendant attempted to prove the release was valid by presenting an affidavit of the Manager of Customer relations and black-and-white copies of the page and a separate copy of the release. The court did not have a copy of the page as it was seen by the participants.
Below the box containing the scrollable PWCR was another box next to the statement: "I agree to the above waiver." Best avers that it was necessary for the plaintiffs, or any other registrant, to click on the box to indicate his or her consent to the PWCR in order for the registrant to complete his or her registration for the TM Event. According to Best, the internet registration form cannot proceed to the payment page, and registration cannot be completed, until the registrant checks the box indicating his or her consent to the PWCR. She further avers that both plaintiffs did in fact click on the box indicating their consent to the PWCR, as otherwise they would not have been able to participate in the TM Event. Based upon the foregoing, Tough Mudder contends that the plaintiffs agreed to the terms of the on-line waiver, which included the arbitration clause and, therefore, are barred from pursuing the instant action
The box that held the release did not show the entire document unless the reader scrolled through the center window. What the court received in its copy of the page, obviously only showed the small part of the release that was visible when the page was printed.
The agreement was labeled:
ASSUMPTION OF RISK, WAIVER OF LIABILITY, AND INDEMNITY AGREEMENT PARTICIPANTS: READ THIS DOCUMENT CAREFULLY BEFORE ACCEPTING. THIS DOCUMENT HAS LEGAL CONSEQUENCES AND WILL AFFECT YOUR LEGAL RIGHTS AND WILL ELIMINATE YOUR ABILITY TO BRING FUTURE LEGAL ACTIONS
Not identified in the heading and located several pages into the release was an arbitration provision.
Analysis: making sense of the law based on these facts.
The judge shredded the defense in an efficient point by point denial of the defendant’s defenses for two reasons. They did a lousy job of setting up the documents to be signed online, and they did a worse job of presenting that information to the court.
The court first looked at the motion to compel arbitration. To compel arbitration the party wanting arbitration must:
It is well settled that "[a] party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties' clear, explicit and unequivocal agreement to arbitrate". When one party seeks to compel the other to arbitrate any disputes between them, the court must first determine whether the parties made a valid arbitration agreement. The party seeking arbitration bears the burden of establishing that an agreement to arbitrate exists
Whether or not the online agreement was valid is based on the specific facts of the situation.
The question of whether there is agreement to accept the terms of an on-line contract turns on the particular facts and circumstances. Courts generally look for evidence that a website user had actual or constructive notice of the terms by using the website. Where the person's alleged consent is solely online, courts seek to determine whether a reasonably prudent person would be put on notice of the provision in the contract, and whether the terms of the agreement were reasonably communicated to the user
The court then went into an analysis of the four types of online consumer contracts: “(a) browsewrap; (b) clickwrap; (c) scrollwrap; and (d) sign-in-wrap.” Each type of agreement has different requirements to be valid.
Browsewrap exists where the online host dictates that assent is given merely by using the site. Clickwrap refers to the assent process by which a user must click "I agree," but not necessarily view the contract to which she is assenting. Scrollwrap requires users to physically scroll through an internet agreement and click on a separate "I agree" button in order to assent to the terms and conditions of the host website. Sign-in-wrap couples assent to the terms of a website with signing up for use of the site's services....
The court then found, because the defendants' document was so bad, that this agreement was a clickwrap agreement. Since the printed copy of the webpage only showed a small part of the release, the court found it could only be a clickwrap agreement.
Here, the PWCR at issue appears to be a click-wrap agreement as identified in Berkson in that the clickable box is located directly below the scrollable text box that allegedly contained the full text of the agreement. Only by scrolling down in the text box would the user see all of the terms of the PWCR, including the arbitration clause at issue. However, the user could proceed to complete the registration process without necessarily scrolling down through the text box to view the full document, thereby rendering it a click-wrap agreement. At oral argument, counsel for defendants claimed that it was a scrollwrap agreement, as it was not possible to click "I agree" without scrolling through the agreement, but there is nothing in the record to support this claim.
For clickwrap agreements to be valid:
A party may be bound to a click wrap agreement by clicking a button declaring assent, so long as the party is given a "sufficient opportunity to read the ... agreement, and assents thereto after being provided with an unambiguous method of accepting or declining the offer."
"[a] court cannot presume that a person who clicks on a box that appears on a ... screen has notice of all contents not only of that page but of other content that requires further action (scrolling, following a link, etc.) ... The presentation of the online agreement matters: Whether there was notice of the existence of additional contract terms presented on a webpage depends heavily on whether the design and content of that webpage rendered the existence of terms reasonably conspicuous.... Clarity and conspicuousness of arbitration terms are important in securing informed assent."
Thus, on a motion to compel arbitration, a valid agreement to arbitrate exists where the notice of the arbitration provision was reasonably conspicuous, and manifestation
The court simply found the “plaintiffs did not have actual notice of the arbitration provision at issue in this case.”
As cited in a recent decision, Corwin v. NYC Bike Share, LLC, 238 F.Supp.3d 475 (S.D.N.Y. 2017) "a user's clicking of a box is not, without more, sufficient to signal their assent to any contract term. The touchstone in most courts' analysis of the enforceability of clickwrap contracts turns on whether the website provided 'reasonably conspicuous notice that [users] are about to bind themselves to contract terms' "
For the online agreement to be valid, the agreement must:
First, terms of use should not be enforced if a reasonably prudent user would not have had at the very least inquiry notice of the terms of the agreement. Second, terms should be enforced when a user is encouraged by the design and content of the website and the agreement's webpage to examine the terms, such as when they are clearly available through a hyperlink. Third terms should not be enforced when they are "buried at the bottom of a webpage or tucked away in obscure corners."
The courts review of what was presented to the court was simple and a slam against the defendants.
Here, the court finds that Tough Mudder has failed to establish that the webpage, as it existed in 2016 when the plaintiffs registered for the TM Event, provided reasonable notice of the relevant term (the arbitration provision) of the PWCR. In fact, Tough Mudder has failed to set forth sufficiently detailed evidence as to how its on-line registration webpage appeared to the plaintiffs, or other users/registrants, during the relevant time period.
And then the court piled on the defense for doing a lousy job of presenting the information to the court.
In addition, the court notes that the purported copies of the plaintiffs' respective on-line registration forms (screen shots) submitted by Tough Mudder (Exhibit D) are black and white copies of poor quality, the text of which is in an extremely small font size and is barely legible. Tough Mudder has not proffered any color copies of any screen shots depicting its on-line registration process.
The court stated the important sections of the agreement needed to be identified so anyone reading the agreement would understand the importance of those sections. The court pointed out the heading identified the agreement as a release, but did not identify the agreement as containing an arbitration clause.
The court then slammed the door shut on the release itself because it violated GOL § 5-326.
§ 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable
The court threw out both the release, and the arbitration clause within the release. In a footnote, the court stated it’s holding was in line with other decisions.
[1] It seems defendants conduct similar events all over the United States. There are two other actions pending in Kings County Supreme Court against defendants, and in both actions, defendants motions to compel arbitration were denied, albeit on different grounds.
So Now What?
This was not a case where the court wanted to make sure the defendant lost. This was a case where the defendant did a lousy job.
Microsoft gets away with this type of release and online crap because they are offering contracts where damages are the contract value; what you are paying for the software.
When you are dealing with torts, where thousands or hundreds of thousands of dollars are on then a simple click or shrink wrap agreement will not suffice.
Create this page in such a way you can show it to the court.
Then have a click at the bottom that states the participant understands they are giving up certain legal rights. Then have the participant click to go to the payment page. The credit card information verifies the participant is who they say they are because of the credit card agreements.
Finally, when you send the person their receipt for signing up for the event, include a paragraph stating they also signed a release and possible a link to the release.
Quit hiding legal documents and put them out there and in front of your participants, guests and customers.
What do you think? Leave a comment.
Copyright 2019 Recreation Law (720) 334 8529
James H. (Jim) Moss, J.D., Attorney and Counselor at Law
www.Recreation-Law.com https://summitmagicpublishing.com/
Phone: 720 334 8529 Social: @RecreationLaw
