SandBar 6:3, October, 2007
Tourist’s Liability Waiver Upheld
Delponte v. Coral World V.I., Inc., 2007 U.S. App. LEXIS 11508 (3d Cir. May 16, 2007).
Amber Myers Robinson, 3L, University of Mississippi School of Law
The Third Circuit has affirmed an order granting summary judgment to Coral World, a local business offering entertainment to tourists. The summary judgment was based on a waiver signed by the plaintiff releasing Coral World from liability. The court agreed with the United States District Court of the Virgin Islands that the waiver was unambiguous, that it did not fall within the services contemplated by the Plain Language Act, and that the waiver was not void for public policy reasons.
Coral World operates a tourist attraction in St. Thomas, Virgin Islands, known as Sea Trek. Sea Trek allows a tourist wearing a helmet and breathing tube to descend a ladder into the ocean and walk along the sea floor observing the natural habitat. While on a cruise ported in St. Thomas, Joseph Delmonte participated in the Sea Trek attraction. Delmonte signed a “Liability Release and Express Assumption of Risk” waiver releasing Coral World of all personal injury due to negligence. Delmonte signed the waiver and was present at a training session.
While descending the ladder into the ocean, Delmonte slipped on the ladder and broke his femur bone. Delmonte subsequently filed suit against Coral World alleging “negligent control, maintenance, and inspection of the ladder as well as failure to warn of a known danger.”1 Delmonte did not dispute that he understood and signed the waiver, but contended in district court that the waiver was ambiguous and unenforceable for public policy reasons.
In district court, Delmonte asserted that there were two ambiguities that made the waiver unenforceable. First, he contended that because the contract released claims based on negligence in one provision of the waiver and released breach of warranty in a separate provision that an ambiguity was created as to what type of liability was being released. Second, Delmonte contended that Coral World was liable for his injuries occurring on the ladder, because one provision in the waiver released liability for dangers associated with the helmet and breathing tube, but did not specifically include injuries from the ladder. The district court rejected both of Delmonte’s arguments stating that the “plain meaning rule” required that if a waiver is unambiguous that the express language of the waiver would be used to determine the parties’ intent. The district court determined that the waiver was unambiguous and that the intent of the parties was for Coral World to be released from future liability for negligence.
The Plain Meaning Rule
On appeal, the Third Circuit affirmed the district court’s decision regarding the plain meaning rule, stating that although the word “negligence” is not present in each provision, the waiver clearly and unambiguously released Coral World from liability based on negligence. Also, the waiver clearly released Coral World from liability for all injuries sustained and not just injuries relating to the helmet and breathing tube, since other provisions in the waiver repeatedly stated that Coral World would be released from all physical injuries.
The Plain Language Act
Delmonte argued that he should be able to recover damages from Coral World because the waiver was ambiguous and therefore violated the Plain Language Act.2 The Plain Language Act requires that consumer contracts “shall be written in clear, simple, understandable and easily readable language.”3 The repercussion for not complying with the Act is that the consumer can recover both actual and punitive damages from the seller. However, the court rejected the argument that the waiver violated the Act.
The court held that the waiver could not violate the Act, because the Act is not applicable to Coral World’s waiver. The Act is only applicable to “consumer contracts” which are defined as “contracts for services, including professional services, for cash, or on credit; and the credit, money property or services are obtained for personal, family or household purposes.”4 The court ruled that entertainment was not a personal service and therefore was not covered under the Act. The court further reasoned that even if entertainment was considered services under the Act, Delmonte would still not be able to recover damages from Coral World. The Act only allows the waiver to be voided and damages recovered if enforcement would be unconscionable, which the court concluded was not the situation with Delmonte.
Finally, Delmonte contended that the waiver was void on public policy grounds, since Coral World made a wrongful effort to waive liability from itself. The court noted that “a term exempting a party from tort liability for harm caused negligently is unenforceable on grounds of public policy if . . . the other party is similarly a member of a class protected against the class to which the first part belongs.”5 However, the court held that Delmonte was an invitee of a commercial establishment and as such does not fall within the definition of the protected class that the rule is meant to protect. The court held that Coral World’s waiver exempting itself from liability was not void due to public policy reasons.
The Third Circuit agreed with the District Court of Virgin Islands and held that an unambiguous waiver will be enforced according to its plain meaning. The court ruled that entertainment is not within the meaning of the Plain Language Act and, therefore, waivers for this purpose cannot violate the Act. Also, the court ruled that commercial contracts that waive liability are not against public policy when the waiving party is an invitee.
1. Delponte v. Coral World V.I., Inc, 2007 U.S. App. LEXIS 11508 at *3 (3d. Cir. May 16, 2007).
2. 12A V.I.C. A7 251
3. Id. A7 252.
4. Id. at A7 251a.
5. Delponte, 2007 U.S. App. LEXIS 11508 at *6.