I ran across a case last week in which the court used an agency theory to bind an individual to terms and conditions in a click-wrap deal -- a deal entered into by an acquaintance. Before reading this case, I would have guessed that a Web site's terms and conditions would not be enforceable in this situation but, as is so often the case, I was wrong.
Several years ago a dental hygienist from Boston asked a friend (aka, the "agent") to book a hotel room for the both of them in Ocho Rios, Jamaica. The agent booked the room at the Turtle Beach Towers using Expedia.com and in the process agreed to a click-contract that disclaimed legal liability for
... THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF ANY SUCH SUPPLIERS OR FROM ANY PERSONAL INJURIEIS [sic], DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM.
Well, wouldn't you know it, on her very first night in Ocho Rios, sometime around 11 p.m., the dental hygienist, not the agent, suffered a flip-flop malfunction while descending a flight of stairs on the Turtle Beach Towers premises, causing her to pitch forward into a turtle pond at the bottom of the stairway, resulting in a severe laceration to her leg.
Naturally, she sued Expedia.com. The Web site was negligent in not warning her that the Turtle Beach Towers stairway was poorly lit, that it lacked a handrail, and that the turtle pond at the bottom of the staircase was lethal, she claimed.
To Expedia.com's argument that it had disclaimed all liability for this sort of thing in its online terms and conditions, the hygienist replied that she had not assented to the terms and had not even read them because, she noted, her night at the Turtle Beach Towers had been booked by her friend. The trial court called the hygienist's argument "clearly without merit." The friend, it said, was acting as the hygienist's agent when booking the room.
"Family members, friends, and work colleagues routinely book travel plans for others, and it would be extraordinarily cumbersome to require that each traveler book his or her own ticket," the court said. "Each such arrangement is necessarily an agency relationship: the person booking the tickets is acting as an agent on behalf of the other members of the traveling party."
Implicit in that agency relationship, the court said, is the power to bind the hygienist (the principal) to contracts such as Expedia.com's liability disclaimer.
The court went on to explain that both principal and agent had adequate notice of the Expedia.com disclaimer language, relying on a series of harsh decisions involving accidents on cruise ships. As it turns out, there are many cases enforcing liability limitations printed on paper tickets against persons who traveled on cruise ships but who did not purchase the ticket themselves. The rationale expressed in those cases was that the traveling companions were properly chargeable with notice of the liability limitation where they had even the most fleeting opportunity to look at the tickets but, for whatever reason, did not. In one case cited by the court here, DeCarlo v. Italian Line, 416 F. Supp. 1136, 1137 (S.D.N.Y. 1976), the person who purchased the cruise tickets actually died during the voyage. The plaintiff, who suffered a non-fatal injury, had about 30 days (from the time the tickets were purchased until the purchaser died on the ship) to learn of the liability limitations.
The case is Hofer v. The Gap Inc., No. 05-40170 (D. Mass. Sept. 28, 2007).
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