Man to appeal suit against Disney over 2006 injury 

Dave Peterson says exculpatory clauses in Florida put consumers at risk

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Dave Peterson is threatening to crawl across the state on his hands and knees to get people to pay attention. Or, he says, he might walk across Orange County dragging a cross on his back when he’s in Orlando in August. Whatever he decides to do, he says, he wants it to be big. He wants people to notice.

“I’m gonna make a big stink,” he says. “I’m not gonna take my clothes off – I won’t go that far – but whatever is going to get the most attention, I’ll do it. I want to get in front of the cameras and tell the people of Florida what’s going on here.”

Whether the cameras will show up remains to be seen, but Peterson, who’s in his 60s, says he will be in Orlando on Aug. 6, when he attempts to revive a dismissed lawsuit his son filed against Walt Disney World in 2010, four years after suffering an injury while walking around a trade show at the park’s Wide World of Sports. Owen Peterson, who was 22 at the time, was at Disney to participate in a paintball tournament. Two days before he was scheduled to play, he was at the tournament trade show with his girlfriend when an advertising balloon, tied to a tree on that windy day, blew down and smashed him in the head. Peterson says he was knocked to his knees, stunned.

Peterson thought he was OK, but a Disney representative (Peterson says it was someone named named Dustin Embry) suggested that he go to the hospital to get checked out, and said that Disney would cover the bill. He was, after all, a Disney guest. At the hospital emergency room, doctors found no broken bones and did not diagnose neurological damage, so Peterson was given prescriptions for pain medication and muscle relaxers; he was told he could participate in the paintball tournament and engage in physical activity “as tolerated.”

The next day, Peterson decided he did want to play, even though he had a stiff neck and a headache. So on Nov. 9, he did what most people do when they’re about to take part in a sporting event: He signed a liability waiver presented to him without giving it much thought. On Nov. 10, he played with his team in the competition (not very well, his father says); they were eliminated and Peterson went home.

Ten days later, Owen Peterson was still having headaches and neck pain. He woke up one morning and says he could not see across the room. He went to a local emergency room and he was diagnosed with “post-concussive syndrome” and traumatic brain injury. Immediately, he realized that his run-in with the giant advertising balloon may have been more serious than he’d thought. He had never received any money from Disney for his hospital bills, and he was told that he wasn’t going to. Despite the fact the he was injured at a trade show before the paintball tournament even began, and that he didn’t sign the participation waiver until the day after his injury, Disney and the organizers of the event told him that the fine print said that he’d signed away his right to hold anyone responsible for anything. Even if the injury happened before he signed the waiver. Even if the injury was entirely their fault.

Even if it was due to gross negligence. In other words, the Disney waiver stated, Owen Peterson was not entitled to anything at all. Not even that first hospital bill Peterson says they initially agreed to pay.

Despite the fact that he signed the waiver and was told there was nothing he could do about it, in 2010 Owen Peterson sued Disney, Crossfire Inc. (the company flying the giant advertising balloon that hit Owen in the head) and the alleged owner of Paintball Sports Promotions, the organization that promoted the paintball tournament and contracted with Lloyds of London to take out a $2 million liability policy to cover the November 2006 tournament. (An interesting sidenote: Lloyd’s of London later went on to file a breach of contract suit against Paintball Sports Promotions and Walt Disney World in relation to Peterson’s suit, claiming that the two organizations agreed to contact them about any incidents that happened at the paintball event. Lloyd’s did not learn of Peterson’s injury until Peterson attempted to make a claim on the policy. Which was denied, because the injury happened at the trade show and not during an actual paintball game.)

In his complaint, Peterson insisted that the injury he suffered was a result of negligence on the part of Crossfire Inc. (also known as Flare Fittings). The complaint contends that the company failed to properly secure the advertising balloon, failed to keep it a safe distance away from trade show attendees and failed to take the balloon down, even though the wind made it a safety hazard on the day in question when it slammed into Peterson. It created an “unreasonably dangerous condition on the premises,” the complaint says, pointing out that Disney itself failed to “inspect or adequately inspect” the vendor areas, pedestrian walkways and retail booths. The complaint requested a trial by jury and damages of $15,000 to compensate him for medical bills and hardship.

The case wound its way through the process and was eventually put on the trial docket for May 20, 2013. But it never made it that far. In February 2013, according to a court document filed on behalf of Walt Disney Parks and Resorts, Peterson “voluntarily signed the release in connection with his participation in the paintball event” and, even though he signed it on Nov. 9, the agreement was dated retroactively and covered a period beginning Nov. 7 and ending Nov. 12, 2006. “The scope of the release,” Disney’s filing says, “was before, during or after participation.” So, in other words, it could potentially cover any vague dates before or after the event took place. Dave Peterson says his attorneys at the time, who obviously saw this as a losing battle, suggested the Petersons settle with Disney, Crossfire and the event organizers – for $100. “My son has accrued $80,000 in medical expenses,” Dave Peterson says. “He refused to settle. By Florida bar rules, it’s Owen’s prerogative and his alone to settle or not. Again, by Florida bar rules, the law firm is to abide by that decision.” Instead, the Petersons’ attorneys filed a motion to withdraw as counsel in March 2013, and their motion was granted by Judge Walter Komanski, just weeks before motions for summary judgment by the defendants were scheduled to be heard in April; the Petersons requested extensions while they looked for new attorneys to take the case. Their requests were denied. Summary judgment for all of the defendants was granted on May 13, 2013.

This is where, for most people, the story would end. In fact, if Owen Peterson had to fight this case by himself, it probably would have. “I’m already in medical debt, and I’m not making any money,” Owen Peterson says. He works in a vitamin store in his hometown, Charlottesville, Virginia. “And somehow I’m supposed to manage these legal proceedings from 1,000 miles away.”

So Dave Peterson has picked up the ball and run with it. He’s found attorneys willing to help him file an appeal, and on June 23, 2014, he helped his son file an appeal in the case; the first hearing, he says, is on Aug. 6. Which is when he intends to crawl across the state or drag the cross around town to make people pay attention.

“When it comes down to it, when something like this is stuck in front of you, you say, ‘If I don’t do something about it, nobody will,’” Peterson says, explaining why he seems to be more enmeshed in his son’s predicament than even his son. “I’m not the kind of guy who’s just going to let this go away. My neighbor and I were talking about it just last night, and she said, ‘If it was me, I would have walked away years ago.’ Well, that’s what companies like Disney and these other people rely on. I’m not walking away.”

The waiver Peterson signed is called an exculpatory clause. It’s not uncommon in Florida for companies to use them to shield themselves from liability when they host events. According to the Florida Bar Association, Florida law doesn’t necessarily favor exculpatory clauses. That doesn’t mean it won’t enforce them, though. “Exculpatory clauses, although disfavored, will be enforced if the intent to relieve a party of its own negligence is clear and unequivocal,” notes a journal article on the Florida Bar’s website, aimed at helping attorneys learn to draft exculpatory clauses that will stand up in court. “In describing exculpatory language that will be enforced, one court stated, ‘The wording of such an agreement must be so clear and understandable that an ordinary and knowledgeable party to it will know what he is contracting away.’”

In Peterson’s case, the four-paragraph waiver he signed states that he agreed “not to sue” the parties named in the waiver, even in the case of “claims based on the negligence, action or inaction” of the parties, and that it covers “bodily injury (including death).” Owen Peterson’s signature is at the bottom of the waiver, dated Nov. 9, 2006; but pre-printed in the event information section of the paper are the dates Nov. 7-12, 2006, and under sport “types,” someone has typed: “Paintball and any other activities conducted at or in conjunction with the event.”

When asked about Peterson’s situation, Kathleen Prihoda, manager of media relations for Walt Disney World, says that Peterson’s suit was dismissed because it was without merit.

Case law on exculpatory clauses and contracts in Florida shows that the courts tend to uphold them when they specifically mention that they cover negligence – but according to Michael Kliner, a senior attorney at the Florida Office of the Insurance Consumer Advocate, that doesn’t make it right.

“When I went to law school, we learned just the opposite – there is no such thing as waiving negligence,” he says. But business interests have managed to “start this motion to contract anything they want, as long as adults are signing their rights away.”

Debra Henley, executive director of the Florida Justice Association, an organization of trial lawyers that works to keep the legal system open, says that liability waivers are so common that a lot of people simply don’t understand what they are agreeing to when they pick up a pen and sign one. Liability waivers protect corporations and event sponsors from inherent risk – that is, risk that comes with the territory of engaging in an activity. And the forms are ubiquitous – if you want to take part in virtually any activity, you’re required to sign one. Not long ago, a consortium of business organizations attempted to lobby the legislature to make it legal for parents to sign exculpatory clauses waiving negligence on behalf of children – fortunately, she says, the Legislature did not go along with it. “Imagine if your child is invited to a birthday party at a gym,” Henley says. “If you want to attend, you have to sign the waiver. If you don’t sign, you don’t go. You don’t want to say no, everybody else is going, so you sign it.”

She says that it’s within the Legislature’s means to pass laws that limit or prohibit businesses from being able to completely waive responsibility for their own negligence – but she says there are a lot of big businesses in this state lobbying for the right to not be held accountable for their own errors, so there isn’t a lot of momentum to make change. Which leaves the issue up to the courts.

And Peterson is hoping that the Florida Appellate Court will see what he sees – an overly broad waiver that was signed a day after his son’s injury occurred, during an activity that wasn’t even part of the activity he agreed to waive liability for. Peterson also says it’s not just about his son – he thinks everyone should be concerned about this issue. Hence his threat to crawl around Orlando with a cross.

“Inherent risk is fine, I have no problem with people signing for that,” he says. “If I go to play a sport or ride a horse or whatever, I’m not going to be able to hold anybody responsible for something that happens because I’m doing that. But when you get to the point of waiving negligence, I don’t think most people know the difference. The difference is, if you sign that waiver, and Disney does something stupid and rips off your arm, should you be able to sign away your right to sue Disney for ripping off your arm?”

Below is a copy of the waiver Owen Peterson signed. Do you think this kind of waiver is fair to consumers? Comment below and tell us what you think.

Disney sports waiver

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