PA court examines exculpatory clause - you should check yours / Invitation to present webinar March 2, 2017

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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PA court examines exculpatory clause - you should check yours  / Invitation to present webinar March 2, 2017
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Don't miss todays webinar on the Fire Protection [suppression] contract. 12 noon EST
Title: All You Need To Know About Standard Fire Protection All in One Agreement Covering Installation, Inspection, Service of Sprinkler System, Portable Extinguishers, Kitchen Hood, Smoke Detectors, Fire Pump
What will be covered: General discussion about the Standard Fire Protection All in One provisions including scope of work, liability limitations, insurance issues, indemnity issues, how to handle subscribers who won't sign or want you to sign their agreement. 
Who should attend: Alarm company owners, general managers, sales managers, sales staff
Presented by: Ken Kirschenbaum, Esq.
Register here:   https://attendee.gotowebinar.com/register/658147149875346945
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PA court examines exculpatory clause 
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    Another exculpatory case, this one in PA, where the court was confronted with an exculpatory clause in a football waiver agreement signed by students participating in football.  If you like football you may like the decision because the appellate panel judges seemed to spend more time than I think necessary talking about the game.  The full decision is on my website under Leading Cases state by state under PA cases.  https://www.kirschenbaumesq.com/page/alarm-law-issues.  Case is AUGUSTUS FELECCIA et al v. LACKAWANNA COLLEGE et al.
    A motion for summary judgment was made by the [probably insurance company] defense attorneys, and you can tell from the facts in the decision that the motion wasn't made until there was extensive discovery practice [and legal fees no doubt].  The case caught my attention because the damages included personal injury and that always causes concern when relying on the exculpatory provision.  Scrutiny is heightened, to say the least.  So the court started with examining the law regarding the exculpatory clause, in this case treating it as a waiver and exculpatory clause.  Court applied a two-prong test:
    "The Waiver.  In granting summary judgment to Lackawanna, the trial court relied primarily on the Waiver. It is generally accepted that a waiver, or exculpatory clause, is valid where three conditions are met.

• First, the clause must not contravene public policy.  “Contracts against liability, although not favored by courts, violate public policy only when they involve a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carrier, and hospitals.
• Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.”

    Then the court noted the third criteria: 
    "[O]nce an exculpatory clause is determined to be valid, it will, nevertheless, still be unenforceable unless the language of the parties is clear that a person is being relieved of liability for [their] own acts of negligence. In interpreting such clauses we listed as guiding standards that: 

• 1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 
• 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt, by express stipulation, and no inference from words of general import can establish the intent of the parties; 
• 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 
• 4) the burden of establishing the immunity is upon the party invoking protection under the clauses."

    The long and short of it is that the court noted that "recklessness" would render the exculpatory clause unenforceable.  We know that.  Recklessness is akin to gross negligence and willfulness.  [Do enough discovery in a case and you're likely to find some].
    This court went on to hold:
    "[W]ere we to sanction releases for reckless conduct, parties would escape liability for consciously disregarding substantial risks of harm to others; indeed, liability would be waivable for all conduct except where the actor specifically intended harm to occur. There is near unanimity across jurisdictions that such releases are unenforceable, as such releases would jeopardize the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct. We therefore conclude that, even in this voluntarily [sic] recreational setting involving private parties, there is a dominant public policy against allowing exculpatory releases of reckless behavior, which encourages parties to adhere to minimal standards of care and safety."
    Now read how the court managed to NOT enforce the exculpatory clause [after finding that such provision is enforceable as a matter of law] because, I you will read, the clause was not sufficiently worded!!  
    "Upon review, we conclude that, as in other inherently dangerous activities, the Waiver is valid. Like the trial court, we agree that the Waiver does not violate public policy, relates to the private affairs of the parties, and is not a contract of adhesion. Indeed, Gus and Justin do not specifically challenge the trial court's analysis of the second and third requirements for the validity of the Waiver. Nevertheless, we disagree with the trial court that the Waiver is enforceable under the facts of this case for multiple reasons. First, the language of the Waiver is not sufficiently particular and without ambiguity as to preclude liability. We have explained, “[O]nce an exculpatory clause is determined to be valid, it will, nevertheless, still be unenforceable unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” Chepkevich, 2 A.3d at 1189 (emphasis supplied). Although valid, the Waiver's language does not indicate that Lackawanna was being relieved of liability for its own acts of negligence."
    Thinking you have all the provisions you need in your alarm contracts just because the paragraphs are titled or you had some lawyer write it or you stole it from another alarm company, is crazy.  This is where you need to get your contracts, unless you're crazy:  www.alarmcontracts.com
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FREE Webinar Series "All You Need To Know About" alarm industry issues. 
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Title: All You Need To Know About Standard Fire Protection All in One Agreement Covering Installation, Inspection, Service of Sprinkler System, Portable Extinguishers, Kitchen Hood, Smoke Detectors, Fire Pump
When: March 2, 2017 noon EST
Where: Your computer for power point, live video and call in on computer or phone
What will be covered: General discussion about the Standard Fire Protection All in One provisions including scope of work, liability limitations, insurance issues, indemnity issues, how to handle subscribers who won't sign or want you to sign their agreement. 
Who should attend: Alarm company owners, general managers, sales managers, sales staff
Presented by: Ken Kirschenbaum, Esq.
Register here:   https://attendee.gotowebinar.com/register/658147149875346945
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Title: All You Need To Know About Alarm Licensing and Contracts for DIY 
When: March 9, 2017 noon EST
Where: Your computer for power point, live video and call in on computer or phone
What will be covered: General discussion about licensing in the alarm industry for DYI. Different types of licenses, where you need them and how you get them. How and when to use License Holders or Qualifiers for your business and how to become a license holder for a company. Risks involved in not being licensed. Contract you will need for nationwide DIY monitoring agreements.
Who should attend: Alarm company owners, general managers, compliance managers and license holders.
Presented by: Ken Kirschenbaum, Esq.
Register here:   https://attendee.gotowebinar.com/register/2585168820901654273
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THE ALARM EXCHANGE

Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
516 747 6700
www.KirschenbaumEsq.com
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