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Unforced Errors: The Scope of the Waiver MUST be Clear!!!

Doyice J. Cotten

8445130077_4c18bacd25_zFACT: A well-written waiver willingly signed by an adult participant can protect the service provider from liability for the provider’s negligence in most states.

FACT: Many waivers fail because of what might be termed “unforced errors” on the part of the writer in making clear the scope of the waiver.

In this post, I am reporting several recent cases in which the waiver failed to protect the provider from negligence. The reader should be able to understand why the failure was preventable.

Case 1

Schlumbrecht-Muniz v. Steamboat Ski and Resort Corp., 2015 U.S. Dist. LEXIS 125899.

Plaintiff, a member of a ski team, signed a waiver in order to participate in ski race completion in Colorado. She was injured after a race when she struck a parked ski mobile while skiing to the lift. In interpreting the waiver, the court indicated that the language releases the defendant from liability “for any injuries . . . that are caused or alleged to be caused by [the Defendant], [its] negligent or reckless acts or omissions, hazards that are normally associated with participating in the Event, or the condition of the property, facilities, or equipment used for the Event.” The court held that “event” might be understood to bar 1) all claims for injuries to a race participant based on any injury that occurred anywhere at the sponsoring ski area before, after, or during the time of the race; or it could be interpreted to 2) be so narrow as to be limited to injuries that occur only on the race course during the race. The court ruled the waiver to be unenforceable due to ambiguity. Clearly an unforced error; the waiver could have been written to more clearly express the intent of the provider.

Case 2

Strickert v. Neal, 2015 U.S. Dist. LEXIS 160442.

This case involved a maritime wrongful death. Mark Strickert was drowned on a snorkeling trip after having signed a waiver. His wife filed suit alleging negligence. The waiver relied on by the provider included the crucial wording “I further release and hold harmless the Discover Scuba Diving program …” The waiver named scuba diving and scuba diving risks more than once, but nowhere did it specify snorkeling. The court noted that the scope of the waiver was in question and denied summary judgment based on the waiver. Another unforced error resulted in unnecessary failure of the waiver.

Case 3

Serna v. Lafayette Nordic Village, Inc., 2015 U.S. Dist. LEXIS 92669.

Adriana Serna was injured when, after ice skating, she slipped and fell while walking back to the warming gazebo. The provider claimed protection from the waiver Serna signed prior to skating. The waiver read, in part, “I understand that there are inherent and other risks involved in the sport for which this equipment is to be used and that injuries are a common and ordinary occurrence of the sport, and I freely assume those risks.” It also released the provider from “any and all liability for damage to [the signer] . . . resulting from negligence: installation, maintenance, the selection, adjustment and use of the equipment…”  The court felt that the waiver clearly released the provider from liability for injuries while skating, but did not apply to walking to the heating gazebo. Once again, an unforced error regarding the scope of the waiver resulted in waiver failure.

Risk Management Take-away

It is time to re-read the waiver you are using. Did the writer make it sufficiently broad to cover your risks? Does it specify provider negligence? On the premises? Use of equipment? If you find even one gap, it is time to re-write that waiver.

Photo Credit: Thanks to Christine Alder from Flickr.

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