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Make Certain your Waiver Protects You against Your own Negligence!

By Doyice Cotten

Roseann Jablanofsky died in an accident while taking a motorcycle safety training program. She wanted to be able to accompany her husband on motorcycle rides.

3739241694_94a6092ee0_zPrior to the course, she signed a waiver of liability; the course included classroom instruction and riding practice in a parking lot. In addition, the class was shown a video that warned of the risks associated with operating a motorcycle, and all participants were verbally warned.

At one point during the riding class, Mrs. Jablanofsky was “counseled out” of the class by its instructors. They felt she was too nervous to properly control the motorcycle. She returned at a later date and resumed practice. The next day, while practicing during a remedial class, Mrs. Jablanofsky failed to maneuver her motorcycle through the safety course, lost control of her motorcycle, failed to apply the brake properly, struck a guardrail, and crashed and ultimately died.

Plaintiff sued alleging negligence and recklessness. Motorcycle Safety Services provided a waiver of liability signed by the deceased (Biondi v. Motorcycle Safety Services, Inc., 2014 Pa. Super. Unpub. LEXIS 953). The pertinent part of the waiver read:

I fully understand and acknowledge that: (a) risks and dangers exist in my use of  motorcycles and motorcycle equipment and my participation in the Motorcycle Rider Education Class activities; [and] (b) my participation in such activities and/or use of such equipment may result in injury or illness including, but not limited to bodily injury, disease, strains, fractures, partial and/or total paralysis, death or other ailments that could cause serious disability[.] [Bold added.]

Examination of the waiver language shows that it deals with the inherent risks of riding – and does not release the riding school from any liability for negligence. The trial court found the waiver admissible only for the purpose of showing the decedent knew and assumed the inherent risks of motorcycle riding.

The plaintiffs argued that there was no evidence that she appreciated and assumed the risk presented by the guardrail. The appellate court, however, concluded that there was sufficient evidence that she had assumed and understood the risks.

Risk Management Take-Away

We might say that Motorcycle Safety Services “dodged the bullet” in this case. Their waiver provided no protection against liability for negligence. Fortunately, there was no evidence of negligence on their part; the waiver coupled with the safety video and the verbal warning of risk was adequate to show the decedent adequately understood the risks involved.

Motorcycle Safety Services would do well to hire an expert to write them a waiver that would provide more protection for the company.

Note: The 9th edition of Waivers & Releases of Liability is now available from the author. The more a provider knows about waivers, the better off he or she is.

 

Photo Credit: Thanks to Ronald Saunders for the photo on Flickr.

 

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