Who’s at Fault? Read the Fine Print to Make Sure You’re Not at Risk

from NYTs

If the old printer at his golf club had not been replaced, Ray Mantle probably would not have realized that he and his friends had been signing a liability waiver that could expose them to expensive litigation and damages.

Mr. Mantle, a retired New York lawyer whose specialty was intellectual property, said he had noticed something on the back of the receipt for a golf cart rental at his club, Queen’s Harbour Yacht and Country Club in Jacksonville, Fla., that alarmed him.

Appearing clearly in black ink on white paper, thanks to the new printer, was an agreement that exempted ClubCorp, which owns the club, from any liability incurred while any person — the renter, a family member or even a third party — was using the cart.

These types of waivers, often written in small print with legal verbiage, have become a part of modern life. They typically exempt a business or a person from blame or liability should something go wrong; instead, the onus is on the person who signs the waiver.

More here.

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  1. After reading the article I find my opinion that the country club should take some sort of reasonability when it comes to using of their golf cart. Even though these vehicles go about 20 mph, it’s a vehicle. Anything can go wrong. Malfunction in the cart can seriously injure an individual. I expect country clubs to fully inspect their carts to be fully functional. As something as simple as this should a club be responsible. But what I think the club is trying to protect themselves from hooligans who just fool around in the cart. With the great power of social media, I am aware of young individuals who perform stunts on these carts and really seems to me they get hurt badly. But country clubs are made up of senior individual who will never attempt any type of stunt. I suppose a country club is made to have fun and calm day, without any problems occurring. Seeing a country club not take responsibility for the cart shows they care more of the company than a member. I think it is important to show a sort of care towards a member. Realize these are the people who are paying a tremendous amount of money to not only be members of, but also this is the money what keeps the club running and functioning.

  2. It seems that the idea of the fine print of the contract has continued to be overlooked by everyone, and this has gone on for a very long time. Then, when someone gets hurt or injured from doing something, they start complaining with the company that they suffered an injury from because of mishandling their product and not using it for its intended or proper use. Many of these people who complain do not have a clue of what they are about to get into, especially if the thing that they are involved in winds up going to court. They will not know that they are about to spend thousands of dollars on something that may not have happened if they knew and understood what they were getting into. Obviously, accidents happen sometimes and people do not know when they will happen or who will get into an accident at any given point in time. The person Ray Mantle got himself into some sort of trouble with a golf course that he was at in Jacksonville, Florida. He bought a golf cart while playing eighteen holes of golf, and the receipt on the back said that he would be liable for anything that happens and be exposed to potential litigation and damages. These damages and the litigation process do not come cheap either. It would probably cost thousands of dollars out of his pocket if he were to end up in court. All of this is because he did not read the waiver closely to where he became exposed to much more severe consequences. It is a good thing that he noticed. I think people should be aware of what they get into, but companies should have some sort of accountability or responsibility if things were to go wrong. Say a golf cart breaks down and a guy was injured, you can’t say that it was his fault. The company had the golf cart and it malfunctioned, so technically that blame should be placed on the company or the golf club in this case because they own the golf cart, not the person who rents it for the day. This is why it is so important to read the fine print of anything you get, because that is where the most important pieces of information are located.

    • Mr, Shupper,
      My biggest issue with the liability waiver is that it was placed on a receipt which may not be discovered by most people. In addition the problem with making the business liable for cart malfunctions is that the business now must make themselves open to even more liability. The perception of this additional liability might decrease the willingness to investment in business. Therefore Mr. Shupper, the waiver is in essence an agreement that recognizes a citizens’ ability to participate in an activity freely.

  3. This article shows how companies use tactics to place liability on the consumers rather than themselves without consumers noticing. The company placing the notice of liability in the fine print on the back of the receipt was done deliberately so the consumer wouldn’t notice this notice. This reminds me of the question of business and the terms and conditions on their products. In TID 2 we talked about the different ways companies get consumers to potentially agree to waivers that would place them responsible for any issue that would arise. The way the golf club placed the notice on the back of the receipt in the fine print reminds me of how some electronic companies will use “browse wrap” tactics to have their terms and conditions essentially hidden. The links to their terms and conditions would usually be found at the bottom of the page with a bunch of other links. People need to realize the importance of understanding the agreements they enter just by using a company’s product. Just like with browse wrap consumers agree to all terms and conditions by using the golf club’s products. If an accident were to happen most consumers wouldn’t even know if they were responsible or if the company was. This is often how many people lose money in litigation and any damages occurred in the accident. Say per chance Mr. Mantle hit something in the golf cart and fell out any injuries sustained and damages to the cart would be Mr. Mantle’s responsibility. People need to read agreements before making any purchases or uses of company products.

  4. The conflict centers on two principles that can find themselves in disagreement: freedom of contract versus public policy. Contracts provide businesses with the freedom to engage in agreements without government intervention or government oversight but there are times when courts will intervene and it is in situations where public policy is at stake. In other words the need to ensure public policy can overrule a contract. Besides public policy, one could even argue on the basis of tort law that contract law should have its restrictions given it can absolve an entity from liability, such as through negligence. The Restatements of Contracts (2d) establishes that contracts cannot void an employer’s responsibility to create a safe work environment (as cited in Anzivino 2019). In addition such contracts cannot be enforced in landlord-tenant contracts. Therefore the law has attempted to balance the need to protect businesses as well as consumers. Finally the elusive definition of public policy may not necessarily be a disadvantage as it relates to consumers because it gives courts additional flexibility to determine when activities fall under the label of public policy.
    It is disconcerting and questionable however in the case of Mr. Mantle whether or not a hypothetically barely legible receipt contract would actually be considered an enforceable contract. How can a legal agreement be enforceable if the terms cannot be understood?
    On the other side of the pendulum however increasing liability for businesses by voiding exculpatory clauses might backfire by discouraging business investment and growth. An entrepreneur for example might not be eager to start a snow ski resort if consumers have an increased ability to hold him or her responsible for damages, regardless of who is to blame for the injury.

    Anzivino, R.C. (2019). The Exculpatory Contract and Public Policy, Marquette Law Review 102(3). Pg 746-775.

  5. This article truly brought up a similar issue to what our TID #2 expressed, about conspicuousness about specific terms that the corporation had contracted with the consumer. In this case, it is the country club with the members of the country club. If the printer had not been changed in the country club, then the retired lawyer who noticed this agreement at the back of the receipt from renting the golf cart, would not have ever known about this alarming term of service. What this term says is that whoever uses the golf carts from the country club, the company will not be liable for any injuries sustained while using the golf cart. This is completely unfair and ridiculous of a waiver to have. Especially when it is in small print and is not conspicuous for everyone to notice. Especially, when a retired lawyer noticed this, and the average person will not be looking for these things or understand what they truly mean. Therefore, Mr. Mantle (the retired lawyer) complained to the manager of the club about this just to find out that this has been a policy for years but was not noticed due to its grey ink on yellow paper.

    When referring to the responsibilities of two parties in a contract, it is important to note that the corporations tend to be very deceptive in the way that they present information to the public. The average person’s eye will not focus on grey ink on yellow paper unless there is something that notes that we must look there. From personal experience, grey ink on yellow paper is very difficult to read and makes it impractical to squint and try to understand what is being noted in the paper. This especially contributes to the fact that this was on the back of a receipt, which many people do not read their receipts because there is normally not much valuable information on them except how much the individual paid for the items or services. Therefore. Mantle after realizing how unfair the country club’s process of waiver was, he started a campaign to fight this arbitrary waiver. Since many people would not have chosen to rent the golf carts and take the risk if they knew about this aspect of the agreement that they waived.

    When it comes to who is “at fault” I believe that the companies should be taking the extra step to make things conspicuous for their consumers. What makes this difficult is that waivers and contracts have different regulations in different states, which makes fighting these cases much harder because of the discrepancy within rulings and regulations. But, the basis of the law is that there must be clear language and the strength of the bargaining power that the person being signed the waiver has. When considering this country club incident, based on the facts given, the waiver was not clearly visible for everyone to see. This is because it was printed grey ink on yellow paper which not everyone can read. Eyes are sensitive and if they wanted to print on yellow paper, they should have used bold black in on it. Grey ink is very light and leaves room for people to look over and not notice any writing being present. Especially the fact that yellow paper was being used, which is obnoxiously bright and strains the average person’s eye. Therefore, it seems that from face value the country club’s rental business was purposely trying to prevent its customers from reading the waiver. Which then leads me to my next point of bargaining power of the consumer. The customers clearly did not know of this waiver and it was due to its inconspicuous nature that no one was able to notice it. As stated by Mr. Marks, if he knew about the waiver, he would have spoken up about it and tried to negotiate better terms because it is not fair that the company’s negligence of maintaining the carts or maintaining the field will exempt the club prom responsibility in the incident. Therefore. The bargaining power of the customer is very limited, and it just shows that this contract should not be enforceable due to its one-sided nature favoring the country club. I do not believe that in certain instances the country club should be held to full responsibility since sometimes it is both of the parties’ faults or it is just the renter’s fault. Therefore, I feel that placing full liability on the country club will deter business ventures, but I do think that the country club should hold responsibility for things they could have done to prevent these accidents from occurring. Therefore, my final stance is needing the country club to have conspicuous waivers that directly inform the renter of the terms and the waiver, and have them directly sign off on it. This will prevent doubt of assent to the agreement. Additionally, the country club should have its terms changed to take responsibility for accidents that were caused due to their neglect. It is unfair to place full fault on either side of the contract; therefore, the terms should be fair between both of them and place liability where it is due.

  6. My first impression when reading this article was how worrying the way most of us have been overlooking the details of the liability waivers imposed by service businesses and just signed off on them without knowing the implications. It is true that ubiquitous waivers like this can be found at your local rock climbing ground to any ski resorts and thus somewhat became the norm to both business and customer. In theory, they are used to encourage customers to exercise precautions and care, but most of these waivers can be filled with vague clauses that may exempt companies from owning up to their malpractice. A company has a responsibility to provide safe and quality services for everyone. However, for example, if they fail to maintain their equipment properly, which is the golf carts in the case mentioned in this article, the customers would be at risk and the company would not be responsible for negligence. In the case of the golf club mentioned in the article, the waiver was elusive to most eyes, as such it should essentially be voided.

    The lesson we can learn from this is vigilance and how much validity the private contracts such as these liability waivers can stand up to public statue, especially in different states throughout the US. Liabilities waivers are not going away as it is a reasonable method for businesses to protect themselves. Despite this, steps must be taken by regulators in all states to establish a standard restriction on how the waivers work and what terms must be included and highlighted for consumers protection as well.

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