Contracts And Poker: Exculpatory Clauses

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As casinos re-open, will it be business as usual in the poker room? Casinos must be asking, what can we do to try to prevent the spread of the virus? In legal terms, they would be asking, what is enough to avoid liability for negligence if we are sued by a patron who was exposed to the virus on our premises?

As any first-year law student could tell you, negligence arises when you fail to exercise ordinary care when you owe someone a duty. Knowing the conditions that can cause the spread of the virus, casinos might be liable for negligence if they failed to take reasonable measures to prevent that from happening.

A casino might enforce social distancing, but that would be problematic at the poker table. Players could be required to wear masks, but dealers would have to be prepared to translate a player’s “mumble-mumble” into “Raise — 500.” And with the dealers themselves likely wearing masks, communications at the table could become like the game of Telephone. Masks would be very helpful in preventing the spread of the virus from bodily fluids, but chips passing from hand to hand might also create exposure. Even prior to the present situation, many tournament chips look like laboratory petri dishes.

If there is a risk that whatever measures they took might not pass muster in court to defend against a negligence claim, casinos might try to pass that risk back to the customer. They would do that by having the customer agree to what is called an exculpatory clause – a provision in a contract by which one party agrees not to hold the other liable for its acts of negligence. If you have engaged in a potentially dangerous activity such as sky-diving or bungee-jumping, that form they made you sign before you engaged in the activity doubtless contained such a provision – as you doubtless know since you read it thoroughly.

If signing a release proved awkward, the casino could try to bind you less formally; for example, they could put a sign by the entrance that stated something like, “By entering this card room you agree not to hold the casino liable for negligence.” But courts might well conclude that by engaging in that passive action, the patron did not consent to a binding contract.

If there is assent to a contract that contains an exculpatory clause, is the clause enforceable? Like most legal questions, the answer is, “It depends.” What does it depend on? For one thing, it depends on the jurisdiction, that is, the state in which the activity takes place (and note that Indian reservations within a state might have different rules). A couple of jurisdictions, notably Louisiana and Montana, do not enforce any exculpatory clauses.

For another thing, it depends on what acts the clause purports to excuse. It is unlikely, for example, that you can agree not to hold a party liable for what are called intentional torts, such as battery, or even for gross negligence, like failing to take any reasonable steps to prevent the harm. So we are talking about ordinary negligence – simple careless acts. In some jurisdictions, enforceability might also depend on whether the party knew what they were getting into. Is the clause written in plain language and does it alert the person to what they are agreeing to? I recall seeing a whitewater rafting contract that, in order to satisfy the requirements of that jurisdiction, went on for pages describing all the catastrophic events that might happen to you while rafting!

It also depends on the bargaining positions of the parties. A sophisticated businessperson who has bargaining power when negotiating a contract can probably agree to exculpate the other party from its negligent acts. But most of the time an ordinary person is faced with a take-it-or-leave-it situation – if you want to engage in the activity, you have to agree to the clause. In that situation, in most jurisdictions enforceability depends on whether the activity involves a strong public interest, one that you can’t just walk away from.

In one California case, for example, a patient was being wheeled into a hospital on a gurney when the hospital got him to sign an exculpatory clause. When he later sued the hospital for negligence, the court had no trouble determining that because medical care is the kind of public service that is a necessity for most members of the population, an exculpatory clause is not permissible in such a situation.

Similarly, in residential housing, a landlord can’t ask a tenant to agree to an exculpatory clause in a lease. In fact, in the usual case there is nothing wrong with a party putting an exculpatory clause in a contract; even if it is found to be unenforceable, that is the only consequence. But in the case of residential housing, in most jurisdictions it is illegal to put it in the contract and there can be consequences for the landlord who violates the rule. Activities like whitewater rafting and horseback riding probably lack public interest, so in most jurisdictions, exculpatory clauses in those areas are probably enforceable.

So where on the spectrum is poker playing – an area involving a great deal of public interest like housing and medical care, or an area lacking public interest like bungee jumping and skydiving? There is something to be said for the public interest aspect of poker. After all, unlike other casino pursuits, there are those who depend on the poker table to earn their livelihoods. For those individuals, there is a strong interest in making the activity available. But for most of us, poker is merely entertainment, and the activity would probably be found to be lacking in public interest.

My guess, therefore, is that if a poker room asks you to agree to an exculpatory clause before you play, it is likely to be enforceable. That is, you bear the risk if you are harmed by the casino’s negligence. Whether casinos will actually ask you to enter into such an agreement remains to be seen. ♠

Scott J. Burnham is Professor Emeritus at Gonzaga University School of Law in Spokane, Washington. He can be reached at
[email protected].