One case, two lessons: Waterslide dangers

legally speaking

Alas. A guest at the Atlantis Resort, in Paradise Island, Bahamas, was enjoying a lovely holiday until disaster struck on a waterslide. As she was readying herself on a tube at the top of the attraction, a hotel employee allegedly pushed her before she was fully positioned. As a result, her head hit the slide multiple times on the way down causing head and brain injuries (ouch!).

Lesson one: Training of employees needs to be thorough and frequent. Duty posts requiring special care and attention should be assigned only to workers qualified to do the job. Do not underestimate the skills needed, both physical such as strength, and personality make-up, such as patience under pressure and ability to concentrate.

The injured guest and her husband were visiting Paradise Island from their home in Florida. Plaintiff and her husband made their reservation online. To complete the transaction, one of them was required to click a box indicating that he or she had reviewed and agreed to the hotel’s terms and conditions. One of those terms stated that, upon registering at the hotel, they would be asked to sign a form agreeing that the exclusive venue for all lawsuits was the Bahamas Supreme Court. 

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Immediately after plaintiff completed her reservation, the resort sent a confirming email that included a link to the same terms and conditions. Upon arrival at the hotel and during check-in, plaintiff and her husband were predictably provided a form to sign that stated, “I irrevocably agree to the Supreme Court of The Bahamas as the exclusive venue for... court proceedings.” Both parties signed.

The injured woman sued the hotel’s owner, Kerzner International Limited, in her home state. While the Bahamas is a great place to vacation, it is an inconvenient and costly place to pursue a lawsuit by residents of the U.S. Likewise, the United States is inconvenient and expensive for a business in the Bahamas.

The resort asked the Florida judge to dismiss the case, relying on the forum selection clause. In response, the plaintiff argued that the venue provision should be unenforceable because she did not have adequate notice, and the terms and conditions inserted online by the hotel were too lengthy to read or absorb.

Not surprisingly, neither was a winning argument. She received three separate notices, arguably two more than necessary. Likewise, the judge made appropriate short shrift of the “too long to read” argument, saying, “Failure to read documents is not excused by the documents’ length.”

The upshot? Case dismissed without prejudice, meaning plaintiff can re-file in the Bahamas, but only in the Bahamas.

Lesson two: That list, often long, of terms and conditions on a hotel’s website typically becomes part of the reservation contract where guests register online and click their approval. Terms contained on check-in documents likewise become part of the parties’ agreement. Review your online and check-in provisions for possible omissions that, if included, could benefit your facility.

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