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Protracted litigation over exculpatory clause
July 10, 2019
See webinar notice below:  cyber security – protect yourself and make money
Protracted litigation over exculpatory clause   
            Too often litigation takes too long, and wastes tremendous amounts of time, energy and resources.  If you believe as I do, that Ignorance is nine tenths of the law, you can understand why.
            A bicycle rider signed up for a charity bike riding event in the City of Philadelphia.  He has to sign an exculpatory agreement waiving liability if injured in the event by “e-signature”.    He got hurt during the ride and despite the exculpatory agreement, found a lawyer to sue.  There was a 5 day trial.  The judge refused to allow the exculpatory agreement into evidence.  Trust me, you can add countless days to the 5 trial days.  Jury awards $3 million to the injured cyclist and $100,000 to his wife for loss of consortium.  The trial judge, who obviously didn’t know the law regarding exculpatory agreements, did know that there is a law capping damages so the award was reduced to $500,000.  This judge required post-trial briefs from both parties.  The City appealed.
            The appellate court reversed the trial judge and dismissed the complaint.  What a waste of time.  The intermediate appellate court held:
            “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 carriers, and hospitals.”
            “Pennsylvania courts have noted multiple times that an agreement exculpating the sponsor of the race and the owner of the track does not contravene public policy. It is a contract between individuals pertaining to their private affairs and does not impair generally the rights of members of the public… Further, a release that does not relate to an essential service, but merely governs a voluntary recreational activity, does not implicate a public interest.” 
            “Generally, the Commonwealth's courts have consistently upheld the validity of exculpatory releases with regard to various sporting and recreational events as non-violative of public policy. (downhill skiing);  (whitewater rafting);  (snow tubing); (use of motorcycle club's track);  (automobile race pit crew hobbyist);  (automobile racing). Specifically, this Court has determined that exculpatory releases used in bike tour-type events are not contrary to public policy. This Court refused to invalidate an exculpatory release used in a bike tour event based on public policy grounds, stating instead that “[t]here is a valid public policy to preclude recovery against self-inflicted injuries through known risks.”  (discussing injuries suffered as a result of encountering the known and voluntary risk of adverse road conditions during bike tour). In Scott, which involved injuries suffered as the result of a fall during a seven-day bike race, this Court determined that where an exculpatory release represented a private agreement between an individual and various entities – including a municipal entity – that did not involve a mandatory agreement between an individual and an employer, or a public service, a public utility, a common carrier or a hospital or healthcare provider, and where the individual was under no obligation to either sign the release or participate in the biking event, the exculpatory release was valid and did not contravene public policy, despite the event occurring on public streets.” Citations omitted.  degliomini and karen degliomini v. esm productions, inc. and city of philadelphia

Title:  What security integrators must know about cybersecurity
Description:  How to generate recurring revenue from cyber security and how to protect you and your customer from liability
When:  July 16, 2019  12 -1 PM EST
Hosted By: Ken Kirschenbaum, Esq.
Presented by:  Darnell Washington
Who should attend: Alarm company owners and general managers
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301