Everywhere a Sign
This article will cover the general law that applies to warning signs on real property through tickets and other exculpatory language to release property owners. Although there was not a case found directly on point, the underlying principles demonstrate the requirements for a liability release to be binding on people who are injured on a property.
In Ohio, exculpatory clauses relieving a party from its own negligent actions are not against public policy. Papenfuse v. Toledo Area Reg’l Transit Auth., 2015-Ohio-3193, 2015 WL 4720556, at *1 (Ohio Ct. App. Aug. 7, 2015). “Release from liability for future tortious conduct, however, are generally not favored by the law and will be narrowly construed.” Delinger v. City of Columbus, No. 00AP-315, 2000 WL 1803923, at 6 (Ohio Ct. App. Dec. 7, 2000). Clauses that “relieve a party for his or her negligence must be expressed in terms that are clear and unequivocal or they are unenforceable,” and are strictly construed. Thompson v. Otterbein Coll., No. 95APE08-1009, 1996 WL 52901, at 4 (Ohio Ct. App. Feb. 6, 1996). The terms must clearly indicate who is being released and what kind of liability is being released. Delinger v. City of Columbus, No. 00AP-315, 2000 WL 1803923, at 6. “A party waiving his right to recover for another’s negligent acts must make a conscious choice to accept the consequences of the other party’s negligence.” Papenfuse, 2015-Ohio-3193, 2015 WL 4720556, at 2. If a waiver is not clear and unambiguous, the intentions of the involved parties is a question for the jury. Lamb v. Univ. Hosps. Health Care Enterprises, Inc., No. 73144, 1998 WL 474183, at 2 (Ohio Ct. App. Aug. 13, 1998).
In the case Thompson v. Otterbein Coll., No. 95APE08-1009, 1996 WL 52901 (Ohio Ct. App. Feb. 6, 1996), the Court outlines principles to determine the enforceability of a release of liability. The Thompson case involved a plaintiff injured riding a horse on defendant’s property. Thompson v. Otterbein Coll., No. 95APE08-1009, 1996 WL 52901, at 1 (Ohio Ct. App. Feb. 6, 1996). Plaintiff had signed a liability release that relieved defendant of its liability while on the property. Thompson, No. 95APE08-1009, 1996 WL 52901, at *1. When plaintiff signed the release, plaintiff only intended to relieve the defendant of her own negligence on the property but did not intend to relieve defendant of its own liability on the property. Id. When the Court looked at the liability release, it found the release attempted to relieve everyone from any type of wrongdoing, whether it was negligence or wanton or will conduct. Id. at 4. The Court noted this type of language in the clause was so general it was meaningless. Id. In remanding the matter back to the trial court, the Court proclaimed, “if such a release is not expressed in terms that are clear and unequivocal, the release can be unenforceable.” Id. (Citing, Tanker v. N. Crest Equestrian Ctr., 86 Ohio App. 3d 522, 621 N.E.2d 589 (1993).
With that stated, the underlying principles are helpful. In order for release of liability to be enforceable it cannot relieve everyone of all liability. The Court seems to indicate the release must have some particularization rather than generally relieving conduct. This concept is helpful because depending on the sign’s language, the sign may be too general to have any binding effect.
Moreover, the case Holmes v. Health & Tennis Corp. of Am., 103 Ohio App. 3d 364, 659 N.E.2d 812 (1995) reversed the trial court’s grant of summary judgment based on the viability of a release. In Holmes, plaintiff was injured while working out at defendant’s health club. Holmes, 103 Ohio App.3d at 366, 659 N.E.2d at 812-813. In the membership contract there was a waiver and release provision that read in part “[u]se of our facilities is at your own risk, and we shall not be liable for any injury or damages resulting from your use of our services and facilities.” Holmes, 103 Ohio App.3d at 366, 659 N.E.2d at 813. In stating that summary judgment was improperly granted the Court stated it could not say “the ‘waiver and release’ contained in the membership contract expressed a clear and unambiguous intent by Holmes to release the health club from liability of its negligence, or for the negligence of its employees.” Holmes, 103 Ohio App.3d at 367, 659 N.E.2d at 813.
Once again, the Court in Holmes is demonstrating an important point that waivers and releases must be clear and unambiguous to be enforceable in Ohio. There is a consistent notion that liability releases must be clear to what type of conduct and liability the owner of the property is released.
Furthermore, Palotto v. Hanna Parking Garage Co., 68 N.E.2d 170 (Ohio Ct. App. Apr. 1, 1946) provides insight as to whether a property owner can relieve itself from negligence on its own property. In Palotto, plaintiff parked his vehicle, which contained valuable personal property in a parking lot. Palotto v. Hanna Parking Garage Co., 68 N.E.2d 170, 171 (Ohio Ct. App. Apr. 1, 1946). Some of the valuable property located in the vehicle was removed and stolen when the vehicle was in defendant’s possession. Palotto, 68 N.E.2d 170 at 171. In defendant’s answer to the Complaint, defendant asserted the parking lot attendant called plaintiff’s attention to the printed information on the parking ticket, which absolved defendant from liability. Id. at 172. Plaintiff denied having his attention called to the printed information on the parking ticket. Id. On making conclusions of law on the matter, the trial court outlined in Paragraph 1 of its Conclusions of Law that “parties to a bailment may reduce the liability of the bailee, and even relieve him of liability altogether…” Id. Subsequently, the Court of Appeals of Ohio stated the trial court’s Paragraph 1 in its Conclusions of Law were clearly erroneous. Id. The Court of Appeals went on to proclaim it was well settled that a bailee cannot relieve himself from liability of his own negligence or the negligence of his agents. Id. at 173. The Court further stated, “[c]ontracts limiting liability for negligence in bailments for hire in the course of a general dealing with the public are generally regarded as against public policy.” Id. (Quoting, Agricultural Ins. v. Constantine, 144 Ohio St. 275, 283, 58 N.E.2d 658, 663 (1944)). The Court of Appeals of Ohio reversed and remanded the case to the trial court. Id. at 176.
In Palotto, the case dealt with a waiver of liability language printed on a parking ticket that released the garage of liability. Importantly, the Palotto court indicated this language was not enough to relieve the garage of its own liability. The Court noted that contracts limiting liability for negligence are commonly against public policy. The court in Agricultural Ins. v. Constantine, 144 Ohio St. 275, 58 N.E.2d 658 (1944) also shared the same sentiment in regard to waiver of liability language on a parking ticket. The Agricultural Ins. court stated,
The great weight of authority in this country is to the effect that a ticket…is a mere token for identification…and printed conditions thereupon purportedly limiting the bailee’s liability, become no part of the contract, at least in the absence of anything to indicate that the bailor assented to the conditions before delivering the property to bailee.
Agricultural Ins. v. Constantine, 144 Ohio St. 275, 280-81, 58 N.E.2d 658, 661-62 (1944).
The Agricultural Ins. demonstrates that language on a ticket relieving liability must be assented to in order to be binding. The principles outlined in Palotto and Agricultural Ins. would have applicability to the case at hand. Seemingly, based on these principles, the person on the property would have had to assent to the language in order for the sign to be binding on him. Even though these cases are not directly analogous, the cases outline important Ohio principles regarding releases and waivers.
There are a number of important concepts and principles that would apply to a case evolving a warning sign or exculpatory language to release a defendant property owner. In order for a release of liability to be binding it must be clear and unambiguous, and one seems to have to assent the consequences of the property owner’s negligence.
Today, Jim Heneghan explains the general law that applies to warning signs on real property through tickets and other exculpatory language to release property owners.