Fighting Back Against Pre-Injury Releases

How to Protect Your Clients’ Rights From a Growing Legal Defense to Personal Injury Claims

In recent years, more and more businesses have started incorporating waivers of liability and release language into basic contracts to shield themselves from responsibility when they cause harm to someone due to their own negligence.   The emergence of pre-injury release language in everyday contracts has created new challenges for attorneys representing accident victims.

Although pre-injury releases (also known as “exculpatory releases”) have long been used for high-risk activities like skiing, skydiving and bungee jumping, release language is now appearing in many everyday contracts where people might not expect to encounter harm.  In just the past few years at Galfand Berger, we have represented clients who were injured due to the negligence of a gym, a landlord, an equipment rental company, and a plumbing and restoration service, all of whom tried to escape responsibility due to release language contained in the contract our client had signed before they got hurt.

The law in Pennsylvania is clear that pre-injury releases like these can be enforced, provided they meet a four-prong test set forth by the PA Supreme Court in the 1993 case, Topp Copy Products, Inc. v. Singletary.[1]  In what is referred to as the “Topp Copy Standard”, a court evaluating the enforceability of a pre-injury release must consider the following:

1. Exculpatory language is not favored by law
2. The contract language must specifically state that negligent conduct is being released
3. The language of the contract must be strictly construed, and ambiguous language will be construed against the party seeking immunity
4. The burden of establishing immunity is on the party seeking it.

Although the Topp Copy Standard seems to suggest that pre-injury releases will be rarely enforced, over the past 30 years, there have been volumes of cases where personal injury claims have been dismissed because the injured person signed an exculpatory release before they got hurt.

Fortunately for victims of negligence, there are many exceptions for when pre-injury releases can be enforced.  For example, to be enforceable, a pre-injury release must actually be signed by the injured party.[2]  Also, the document in question must be more than a basic notice of risk, but it must specifically state that the person signing it is releasing the company that prepared the release from their actual negligence.[3]

Furthermore, pre-injury releases never apply to certain types of claimants or claims.  Specifically, a minor can never be bound to a pre-injury release, even if it is signed by their parents because courts have long held that a person under the age of 18 is not competent to enter into a binding contract.[4]   Likewise, a pre-injury release cannot shield a product manufacturer or seller from claims of strict liability against them under Pennsylvania law[5], nor can a government agency use a pre-injury release to prevent claims made against it that are set forth by statute.[6]

Pennsylvania courts have also held that pre-injury releases cannot be enforced against claims of recklessness[7] or grossly negligent[8] conduct, because it would violate public policy and eliminate any incentive for companies look out for the safety and welfare of their customers.

A recent example of a case handled at Galfand Berger where a company tried to enforce a pre-injury release in the face of claims of recklessness and gross negligence was in Bourgeois v. Snow Time, Inc.[9]

Bourgeois involved a client who suffered spinal cord injuries while snow tubing when his tube struck a folded rubber mat that was deliberately placed in his path by the resort to reduce the speed of riders at the bottom of the hill.  Before tubing, our client had signed a document that waived his rights to make claims of negligence against the facility.  However, our investigation revealed that the mats that the snow tubing facility had folded up and placed in our client’s path were manufactured and sold to be used in commercial kitchens and were never intended to be used for snow tubing.  We further learned that the folding and placing the mats in the path of the tube riders created a dangerous hazard that violated both industry standards and the resort’s own policies.   Therefore, we argued that the resort was reckless and grossly negligent, and therefore the pre-injury release that our client signed should not prevent him from seeking a recovery.

Initially, the lower court dismissed Mr. Bourgeois’ claims, enforcing the pre-injury release and finding that the facts of record did not rise to the level of recklessness or gross negligence.  On appeal, the Superior Court agreed with the lower court, stating that our client could not prove recklessness or gross negligence since there was no industry standard for the use of these kitchen mats on a snow tubing hill expressed by our expert.

Fortunately, the Supreme Court of Pennsylvania agreed to hear the case.  In a rare, 7-0 unanimous decision, the Supreme Court reversed the findings of the lower court and Superior Court, so that Mr. Bourgeois could have his day in court.  In reaching their decision, the Supreme Court held that the resort’s “duty was not to comply with industry standards; its duty was to exercise reasonable care to protect its patrons against unreasonable risks that its conduct of using rubber mats to decelerate snow tubers created.”

The main lesson from Bourgeois and the cases referenced in this article is that just because your client signed a document before they got hurt that appears to waive their rights to bring a personal injury claim, there are numerous exceptions and limitations to the enforceability of these pre-injury releases.

Litigating cases with pre-accident releases can be difficult for attorneys who do not regularly practice personal injury law.  The attorneys at Galfand Berger have the experience to handle these matters, and have had proven success overcoming these legal challenges.  That is why so many attorneys refer their personal injury cases to our firm. Galfand Berger has paid millions of dollars to referral counsel and we would be happy to discuss a mutual referral relationship with you.

[1] 626 A.2d 98 (Pa. 1993)
[2] Beck-Hummel v. Ski Shawnee, Inc. 902 A.2d 1266 (Pa. Super 2006)
[3] Brown v. Racquetball Centers, Inc., 534 A.2d 842 (Pa. Super 1987)
[4] O’Leary Estate, 42 A.2d 624 (Pa. 1945), Simmons v. Parkett National Gymanstic Training Center, 670 F. Supp. 140 (E.D. Pa 1987)
[5] Keystone Aeronautics Corp. v. R.J. Enstrom Corp., 499 F.2d 146 (3^rd Cir. 1974)
[6] Degliomini v. ESM Productions, Inc, 253 A.3d 226 (Pa. 2021).
[7] Tayar v. Camelback Ski Corp. Inc, 47 A.3d 1190 (Pa. 2012)
[8] Feleccia v. Lackawanna College, 215 A.3d 3 (2019)
[9] 242 A.3d 637 (Pa. 2020)