Disclaimer: This blog post does not constitute legal advice and does not create a solicitor-client relationship. If you need legal advice, please contact a lawyer directly.
I am lucky. My building has a rooftop pool, with some of the best views of the city. But, prior to picking up my VIP pass to the pool, I had to sign an agreement. In fact, we all had to line up and sign this agreement. Barely any one read it. And no one was directed to pay any attention to the exclusion of liability clause. But, as a lawyer, I made sure to read the agreement.
It pretty much has one of the worst exclusion of liability clauses I have ever read. First the clause is buried in the contract. Second, the clause is not bolded or emphasized in any way. Third, it is poorly written. As a result of the wording of the clause and its placement in the agreement, it would be easy for a judge to interpret the clause in favour of the injured party. This is problematic, as I foresee many injuries in the future.
The rooftop pool has a restaurant. There is tons of alcohol. And the restaurant promotes bottle service all day long right beside the pool. On top of it, everyone is 35 and younger. The combination of it all: water, alcohol, youth, stupidity, sun stroke, is a recipe for slip and falls.
The clause reads as follows:
Indemnity and Release: The Member agrees to indemnify and save harmless [Rooftop Pool] and/or employee, officer, director, person, affiliate, partner, subsidiary thereof in respect of all claims for bodily injury or death, property damage, or other loss or damage arising from the Event or any act or omission of the Client or any agent, employee, invitee, or guest of the Client, and in respect of all costs, expenses, and liabilities incurred by [Rooftop Pool] in connection with or arising out of such claims, included the expenses of any actions or proceeding pertaining thereto, and in respect of any of its covenants and obligations under this Agreement. Please be informed that there is no safety fence/gate surrounding the pools, therefore you should never leave a child or teenager unattended…
The clause basically says that the Member agrees to indemnify the Rooftop Pool in respect of all claims arising from the act of a Client, employee, invitee, or guest of the Client. The agreement does not define who the client is. Is the Client the Member? If so, why does the clause switch from Member to Client?
In sum, I think it is a sloppy agreement. Written quickly. Without any thought to the reader. And, I think it would be easy for a judge to give the agreement little weight, especially if the plaintiff was badly hurt.