How to not let your hotel’s liability waivers fail you

Karen Morris

Karen MorrisPictured: Karen Morris

A Hilton hotel in New York escaped a fine kettle of fish, but you better check the wording on your liability waivers. The property in question was sued in a case involving a kettlebell.1 These devices are odd-looking cast-iron weights that resemble a cannonball with a handle, and are used in strength training and weight lifting. Not everyone’s cup of tea but popular enough for Hilton to host an instructional course on their use, taught by a company named KettleBell Concepts, Inc. (hereafter Concepts).

During the class, a student was hit in the back of the head by a fellow attendee’s kettlebell. The injured man sued Concepts, the teacher and the hotel. Plaintiff claimed the following parties were negligent: the instructor for permitting students to continue swinging the kettlebell while others were walking around the room; Concepts for hiring an incompetent teacher; and the hotel for not sufficiently supervising Concepts or the instructor.

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All defendants sought summary dismissal of the case without the need for a trial. The first defense they asserted was a waiver of liability, called an exculpatory clause. Plaintiff had registered for the course online and clicked his consent to Terms and Conditions, which included the waiver.  The provision stated, “I assume and accept full responsibility for any and all injuries that may occur. . . and forever fully release and hold harmless KettleBell Concepts and the Hilton from any and all causes of action, damages and liability whatsoever.” Sounds quite conclusive, right? No. A key word is missing.

The law does not like contracts that relieve a party from liability for its own negligence. An exculpatory clause will nonetheless be enforced begrudgingly if, but only if, it “plainly and precisely” states that the limitation on liability covers negligence. The law wants to be certain that a would-be plaintiff, who purportedly waives the right to sue, understands what is being relinquished. Without reference to negligence or words conveying a similar meaning, courts will not enforce the restriction on liability for negligent acts, and so the wrongdoer will be responsible.

In the Hilton case, since plaintiff’s claims are based on negligence and the waiver makes no mention of that term, the exculpatory clause did not protect Concepts or the hotel from liability. Defendants’ request for dismissal of the case was therefore denied.

The lesson is clear: Review exculpatory clauses you utilize at your premises. Don’t let them be panned. Be sure the word “negligence” is included.

As a second defense, the hotel denied liability because it was not involved in teaching the class. Instead, Hilton merely rented space to Concepts. The court agreed and, on this basis, dismissed the case against Hilton. However, the judge hinted that if Concepts had been grossly negligent (meaning a high degree of carelessness), the hotel might have been at least partially responsible. So, don’t rely on luck. Investigate would-be tenants to ensure competency. Once they occupy part of your facility, check on them regularly to verify ongoing satisfaction with their services or product.