A Liability Waiver Example

I recently read about an instance in which a barefooter used a liability waiver when confronted in a hotel. Now, I’ve never cared much for liability waivers, and this example is fairly illustrative in that regard.

Here’s the story.

The barefooter—I’m just going to call him Fred—was about to stay at the Embassy Suites Hotel in Boca Raton, FL. And then he went through a whole progression of “Assistant Managers” who got upset about his bare feet. When asked why he needed shoes, they each in turn told him that it was required by hotel policy. With the Hotel Manager, the excuse changed to a concern for safety and a concern about liability to the hotel.

So Fred offered to sign a liability waiver. At that point the Manager went and wrote one, and Fred finished checking in and was able to use the hotel. (I should mention that I’ve stayed at plenty of hotels barefooted without any comment at all, even eating breakfast at their morning buffet.)

Let’s break this down.

First, it illustrates exactly why I don’t like liability waivers. These “managers” were clearly full of all sorts of misconceptions that they were allowed to keep.

They claimed that it was hotel policy. You can see their policy right here. There is nothing about bare feet.

But what really concerns me is that these people were “taught” that it is okay to hassle barefoot customers with falsities and that their misconceptions have validity. They were taught that barefooters acknowledge that there really are safety and liability concerns for businesses. After all, why sign a waiver of that liability unless it is somehow valid?

Others can say, but yes, after signing the waiver other customers will see the barefooter using the place without hassle and we’ll at least get that possible message across.

You can also get that message across by going to a different hotel that isn’t anal, and the customers there can see you going barefoot successfully.

There might also be some benefit in signing the waiver in that, after doing so and staying at the hotel, the managers might thereby learn that there really wasn’t any danger.

I tend to doubt that. People who are afraid of liability aren’t really expecting to happen every time, so the fact that you were okay that one time doesn’t mean anything to them. Also, since Fred signed the waiver, if he did injure himself, would they even expect him to tell them?

This solution is also legally dubious. Let’s take a look at the waiver that was written.

The Waiver Letter

This is to confirm our conversation at check-in that you are aware the hotel is under renovation, and thus we are concerned for your safety as you walk barefooted through our property.

As such, you would hold the hotel harmless for any incident involving injury as a result of you walking barefoot through our property during your stay.

Let me also note that the hotel’s website already provides a warning. Here’s a screenshot of it (click for readable version).

Lobby Construction

Now, if they are leaving debris around, wouldn’t that debris also be a danger to the shod? We all know that nails and the like can penetrate the soles of many sorts of shoes. If they are being cavalier about safety in the construction, might they also be leaving tripping hazards around? Are waivers required of all customers for that?

I’d sure want to ask the manager if he was requiring waivers from all his customers in that regard. Why are they singling out bare feet?

In addition, we all know that people go barefoot or stocking-footed in their rooms. If they are being careless with construction debris some of that debris could find its way into the rooms. If it’s really a danger, the manager needs them to sign waivers, too.

Yet, Fred is the only one among all their customers who is being required to sign a waiver. Why? I’d sure want to know. (Actually, by raising these issues, the managers might get somewhat educated about their sloppy thinking about bare feet.)

Here’s another point: the hotel has a pool! Here’s a picture of it from their website.

The Boca Raton Embassy Suites Pool

Lots of people walk barefooted from their rooms to and from the pool. Why aren’t they being forced to sign waivers? And even worse, Fred has now signed away his right to sue for any defect around the pool.

There is a fair bit of well-established law about pools and other wet places—it is negligent for a place to use slippery tiles, for instance. If this hotel has negligently constructed this pool or negligently maintained it, just because Fred is “walking barefoot through [their] property”, i.e., using their pool, if he is badly injured due to their negligence, he has signed away his right for recovery.

Do we really want to do that?

(He may also have signed away any slips and falls due to negligence in the bathroom of his hotel room for similar sorts of negligence. Is that “walking through the property”? Probably not, but this is exactly the sort of things lawyers argue about. And do we really want to risk recovery due to real possible negligence on the hotel’s part?)

Legally, the hotel has various duties to customers.

A property owner owes two duties to its business invitees: 1) to warn of concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through the exercise of due care; and 2) to use ordinary care to maintain its premises in a reasonably safe condition.

Rocamonde v. Marshalls of MA.

The waiver, for no good reason, absolves Embassy Suites of its legal duty.

And the thing is, all the hotel had to do was warn Fred of the construction. Instead, we got the waiver, which covered all sorts of other situations beyond the construction in the lobby. Yoicks.

I realize that different people have different comfort levels when it comes to these sorts of confrontations.

But I really think Fred gave in way too early in a spirit of being cooperative. These people needed to be made aware of their misconceptions and their silliness in providing the waiver. I would never offer a waiver; instead they need to be asked the sorts of questions I asked above.

And after all of that, I would have told them, “OK, you’ve warned me about the construction in the lobby. That’s all that’s legally necessary.” And if they persist even in the face of the facts, I’d go elsewhere (and then write a letter to the chain about the situation; I wonder what upper management, and their lawyers, would think about the hotel manager making up a waiver letter—I bet you that’s not in their training).

Why reward ignorance?