Personal Injury Law: Releases or Waivers Do Not Bar 93A Claims

Tongier, et al. v. EF Institute for Cultural Exchange, Inc., et al., Lawyers Weekly No. 12-266-11

Issue: Was a release signed by students and teachers on an educational tour waiving prospective G.L. c 93A claims valid?

Decision: No, allowing consumers to waive consumer protection rights under 93A violates the public policy underlying the statute.

Discussion: The Court held that a company that marketed and sold educational tours could be sued under Chapter 93A by the estates of four decedents who drowned during the trip despite a signed release of liability by the decedents prior to the trip. The Judge based his decision on the 2011 U.S. District Court holding in Doe v. Cultural Care, Inc. In Doe, the court determined that a waiver of 93A claims was unenforceable because it violated public policy. The 93A claim in Tongier was based on representations made by the Defendant Company that the tours were safe and that the guides were well-qualified.

Procedurally, this case was interesting as well. Initially, the Judge granted the Defendant’s motion for Summary Judgment on the 93A claim, among others. A month later, the Appeals Court denied the plaintiff’s interlocutory appeal on the 93A claim without a hearing. Finally, the Plaintiffs filed a motion asking the Judge to reconsider in light of the Doe case, resulting in the Summary Judgment reversal.

–Wassem Amin