Atlanta Injury Lawyer Blog
IMAGINE THIS HYPOTHETICAL SCENARIO:
It’s College Football Playoff season. Your beloved [insert college mascot here, not going to jinx it for any team in particular] are in the National Championship. Your husband is somehow able to secure tickets to the big game and purchases four tickets online for you, the kids, and your live‑in mother. He keeps all five tickets for the family in his phone’s “Wallet” to ease the entry process into the game.
While walking out of the stadium post‑game, a portion of the railing—intended to guide pedestrian traffic flow—collapses due to the stadium management’s negligent placement of the broken railing in a crowded area. Your mother falls due to the collapsed railing and suffers catastrophic injuries. Your family now faces unexpected medical bills in the thousands of dollars, your mother experiences pain and suffering no elderly person should have to ever endure, and you and your mother decide to pursue legal action against the stadium because of the growing costs that the stadium’s negligence has caused your family.
You come to find out that you and your mother are blocked from pursuing legal action outside of a private arbitration because your husband, when purchasing the tickets on behalf of the family, could have seen a brief message when logging into the ticket‑sales website that reads something like: “By continuing past this page, you agree to the Terms of Use.” Located (some might say “buried”) within that website’s “Terms of Use” page, which your husband would have had to click a link in order to access, is a “Mandatory Arbitration Agreement” that, in effect, takes away your Seventh Amendment of the U.S. Constitution right to a trial by jury.
Although neither YOU nor your MOTHER ever viewed that Terms of Use webpage or the arbitration agreement therein, never possessed the ticket to the game in your own phone’s wallet, and never saw the “back of the ticket” located in your husband’s phone’s “Wallet,” you and your mother have suddenly lost your constitutional right to a trial by jury for the injuries your mother suffered and the financial costs you have suffered due to the stadium’s negligence. You may be limited to receive a nominal compensation in your forced arbitration in lieu of a larger verdict you could receive if a jury were to find the stadium liable and that your mother’s injuries and your financial damages warranted greater compensation.
That hypothetical scenario would be much less concerning if a United States Court of Appeals had not just held last week, in a similar scenario, that an injured sports fan who never possessed the ticket or saw the terms and conditions could be similarly bound by someone else’s agreement to arbitration through that other person’s purchase of a ticket. See Naimoli v. Pro‑Football, Inc.¸ 2024 WL 4597029. On October 29, 2024, the Fourth Circuit Court of Appeals held that friends of a ticket‑buyer who were injured while attending a Philadelphia Eagles football game against the Washington Commanders Football Team, could be bound by the arbitration clause that their friend might have seen when purchasing the tickets for the whole group. The friends argued that they never possessed any of the tickets which remained in the ticket‑purchaser’s phone’s “wallet” the entire time. They argued, and the lower court found, that they lacked any “actual awareness” of the terms and conditions containing the arbitration agreement that the ticket‑buyer might have seen when purchasing the tickets on behalf of the group. The Court held that the friends could, nonetheless, be bound by the arbitration agreement because the ticket‑buyer had “apparent authority” to act on behalf of his friends when he entered into the contract—the ticket purchase—that included the arbitration agreement. It explained that it was reasonable for the Washington Football Team to assume that the purchaser was purchasing his nine tickets for both himself and for his friends and that this purchase of multiple tickets and the friends’ entry into the stadium by means of those tickets was evidence of the friends’ assent to the purchaser’s acting on their behalf in purchasing the tickets and in entering into the agreement.
[Questions still existed as to whether the ticket‑purchaser actually entered into a contract based on whether Washington Football Team’s terms and conditions were actually displayed on the website, so the Court of Appeals remanded the case for the district court to resolve that question.]
The potential effects of the Fourth Circuit’s ruling could be monumental. The Court’s decision was based on Maryland state contract law regarding the agency principle of apparent authority. Georgia’s higher courts have not yet compelled arbitration under this theory where attendees of a game are bound by the ticket purchaser’s agreement to arbitration, but the question could face our state’s courts in the future.
This football ticket purchase story is not the only forced arbitration to make it into the news recently. Wilder factual scenarios have yielded arguments for compelled arbitration. Just a few months ago, after a patron at a restaurant located on Disney World’s property in Orlando died because the restaurant did not heed her warnings about her food allergies, Disney tried to compel her husband into arbitration based on an arbitration agreement he accepted in a terms and conditions when he signed up for a trial for Disney+ years before. After Disney faced public scrutiny for attempting to take away the husband’s right to a trial by jury based on his unrelated acceptance of arbitration for a streaming service, Disney withdrew its defense and stated that it would permit the matter to proceed in court.
Meanwhile, a New Jersey appellate court has compelled arbitration for a couple who was badly injured when their Uber driver ran a red light because the couple, when creating their account and in her continued use of the app, had to have accepted Uber’s terms of use which included an arbitration agreement. See McGinty v. Zheng, 2024 WL 4248446. The wrinkle in this case, however, involves arguments related to the agency principle of apparent authority and the couple’s use of the Uber Eats app to order dinner. Plaintiff Georgia McGinty, who signed up for the Uber app in 2015, agreed to its terms of use (and arbitration agreement) at sign‑up, throughout using the app for the following years, and on April 1, 2021, following a January 2021 update to the Terms. Uber updated its terms again in December 2021, and in January 2022, Georgia’s phone used the app to order food delivery through the Uber Eats platform, which required a user to check a box confirming that the person had reviewed and agreed to the terms. Here’s the kicker: it was not Georgia who was using her phone to access the Uber Eats platform but, rather, it was her minor daughter who was ordering dinner for the family. The Appellate Division of the Superior Court in New Jersey held, among other things, that even if it had been their daughter using the Uber Eats app in January 2022, under the principle of apparent authority, Georgia’s daughter acted knowingly on Georgia’s behalf when using the Uber Eats app, the arbitration agreement that she had to have acknowledged in order to proceed to ordering food was valid, and the arbitrator would determine the scope of the arbitration. The McGinty’s lawyer had this to say: “Uber has just been extremely underhanded in their willingness to open the same cabinets that they’re forcing the McGintys to open up and have to peek around in,” Shapiro says. “It’s unfortunate that that’s the way that they’re carrying on their business, because this is truly something that subjects millions and millions of Americans and people all over the world to a waiver of their hard-fought rights.”
All of this to say: whether you are buying tickets for the big, upcoming game or using your Uber Eats app to order dinner tonight, take an extra second to look through the Terms of Use (that you have likely already agreed to in past uses of the ticket‑purchasing website or the food delivery app). Scroll down until you see—likely in all caps and/or bold font—an agreement to arbitrate. See what kinds of agreements you have made by clicking those checkboxes when logging into various accounts. Keep your eye out for contracts that you may sign, without even realizing it, on a daily basis. If you have been injured in a stadium due to the negligence of parties at the stadium, contact Robin Frazer Clark, P.C., for a free consultation to see whether you may have a viable claim, irrespective of any arbitration agreement you may not know you have signed.
Lastly, if Disney could cave to public pressure to drop its arbitration defense after its negligence resulted in the death of one of its patrons, maybe it’s time Uber (and other big corporations) takes a page out of Disney’s book and realizes that the value of the life or of injuries caused to its consumers may be worth more than getting a tiny win of getting your case kicked into arbitration … just food (Uber Eats) for thought.
Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia, a Past President of Georgia Trial Lawyers Association, a Past President of Lawyers Club of Atlanta and has practiced law in Georgia for 34 years. She is a Fellow of the International Society of Barristers and a Fellow of the International Academy of Trial Lawyers. Ms. Clark is listed as one of the Top 25 National Women Trial Lawyers. Ms. Clark is the co-host of the podcast “See You In Court.” Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.
