By Caitlin Morgenstern of Koch & Schmidt posted in Maritime Law on Friday, September 9, 2016.
In Olmo v. Atlantic City Parasail, LLC, plaintiff, Dina Olmo, brought a claims for negligent entrustment of the company’s vessel, violation of common carrier’s high duty of care and unseaworthiness against defendant, Atlantic City Parasail (“AC Parasail”), as a result of injuries she sustained when defendant’s vessel hit a wave.
AC Parasail filed a motion for summary judgment in regards to Ms. Olmo’s negligence claims asserting that plaintiff had no claim against it as a matter of law because plaintiff signed a liability waiver. As a result, plaintiff released AC Parasail from all claims of negligence. AC Parasail also further asserted that maritime law does not recognize a claim for loss of consortium. The plaintiffs, on the other hand, asserted that Ms. Olmo did not understand the scope of the legal rights she was waiving when she signed the liability waiver and that the waver was unenforceable because it was an “exculpatory agreement” and the parasailing company cannot exculpate itself from reckless or grossly negligent conduct.
On the issue of the waiver, the court noted that both admiralty law and New Jersey law recognize that exculpatory contracts are valid under certain circumstances. An enforceable exculpatory clause must be “(1) clear and unambiguous; (2) not inconsistent with public policy; and (3) not an adhesion contract.” First, the court found that the language contained in the waiver signed by Ms. Olmo was clear and unambiguous and that it unequivocally should have put her on notice of its legal significance and effect. While the plaintiffs asserted that Ms. Olmo thought she was only waiving her rights in regards to the parasailing and not the boat ride to and from the parasailing site, the court determined this argument was unfounded based on the clear and unambiguous language found in the waiver. Second, under admiralty law, exculpatory clauses waiving liability for negligence are consistent with public policy. Third, the court held that the liability waiver was for a voluntary recreational activity and not an adhesive contract. As a result, the court granted AC Parasail’s motion for summary judgment as to Ms. Olmo’s claims of negligence.