By Doyice Cotten
Claire Donahue (Donahue v. Ledgends, Inc., 2014 Alas. LEXIS 153) signed up for a rock climbing class at Ledgends (dba Alaska Rock Gym). She was inexperienced in climbing, but active in other sport activities.
Prior to her first class Donahue signed a Participant Release of Liability, Waiver of Claims, Assumption of Risks, and Indemnity Agreement. She signed it voluntarily, but failed to read it carefully. The waiver was a 2-page document; Section One included 1) the general risks of rock climbing, including injury and death; 2) about a dozen specific risks inherent in rock climbing, including “falling off the climbing wall,” “impacting the ground,” “the negligence of other[s],” and “my own negligence, inexperience, . . . or fatigue;” 3) an assertion that the gym and its instructors “seek safety, but they are not infallible;” 4) a list of errors instructors might make, including being ignorant of a participant’s abilities and failing to give adequate warnings or instructions.
Section two included the statement: “I expressly agree and promise to accept and assume all the risks . . .”.
Section three was the waiver of liability for negligence. It stated
I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless the [Rock Gym] from any and all claims, demands, or causes of action, which are in any way connected with my participation in these activities or my use of [the Rock Gym's] equipment, rentals or facilities, including any such claims which allege negligent acts or omissions of [the Rock Gym].
There were other sections, but the final paragraph read in part:
By signing this document, I acknowledge that if anyone is hurt or killed or property is damaged during my participation in or use of [Rock Gym] activities or premises or facilities or rental equipment, I may be found by a court of law to have waived my right to maintain a lawsuit against [the Rock Gym] on the basis of any claim from which I have released them herein.
Donahue had an uneventful first class, but toward the end of the second class, she felt unable to climb down using the available holds. She was between three and four-and-a-half feet from the ground and her instructor said she could just drop to the mat. When she did, she landed awkwardly and fractured her tibia in four places.
Donahue sued the Rock Gym alleging negligent failure to adequately train and supervise its instructors. She also cited ads run by the gym that claimed “The only safe place in town to hang out” and “You have nothing to lose and everything to gain.” Based on these, she alleged misleading advertising – a violation of the Unfair Trade Practices and Consumer Protection Act.
Six Characteristics of a Valid Waiver
The Alaska Supreme Court cited six characteristics (developed by the Donahue trial court) necessary for a waiver to be valid and enforceable. They were:
1) The risks being waived (falling and instructor negligence) are specifically and clearly set forth.
The court cited excerpts from the waiver that clearly indicated that the plaintiff was adequately warned of the risks involved in climbing.
I specifically acknowledge that the inherent risks associated with rock climbing . . . include, but [are] not limited to: falling off of the climbing wall, . . . impacting [*16] the ground . . . , general slips/trips/falls or painful crashes while using any of the equipment or walls or bouldering areas or landing pits or work-out areas or the climbing structures or the premises at large, climbing out of control or beyond my or another participant’s limits, . . . my own negligence or inexperience, dehydration or exhaustion or cramps or fatigue . . . .
Donahue claimed that she had difficulty comprehending the waiver when she signed it. However, she stated that she understood the terms when she was asked to read it later during a deposition. The court stated that “There is no reason to believe that she would have found it less comprehensible had she read it at the time she signed it.”
2. The waiver of negligence is specifically set forth using the word “negligence.”
Previous Alaska case law provides that a valid release from liability for negligence must include use of the word “negligence.” Referring to Section Three of the waiver (provided above) the court ruled that “the requirement that a waiver of negligence be specifically set out using the word ‘negligence’ is satisfied by the Rock Gym’s release.”
Section Three contains the language “including any such claims which allege negligent acts or omissions of [the Rock Gym].”
3. The important factors are brought home to the releasor in clear, emphasized language with simple words and capital letters.
Donahue cited a California case which said a layperson “should not be required to muddle through complex language to know that valuable, legal rights are being relinquished.” She argued that the waiver is so laden with legalese that it was impossible for her to understand. She claimed it was lengthy, small-print, and convoluted; a magnifying glass was required and critical language was not made obvious.
The court agreed that the text is small and the releasing clause is in the middle of the document, but said there was no appearance of an intent to conceal the meaning. While it was not highlighted, the language was in a logical place and couldn’t be missed by one reading the document. The clause releasing the Rock Gym from liability for negligence is a “single sentence set out as its own numbered paragraph, and it is not confusing or needlessly wordy.” Further, the inherent risks of climbing are presented in great detail, with ordinary descriptive language that is easy to understand.
Several sentences are devoted to the role of the gym’s “instructors, employees, volunteers, agents or others,” stating that they “have difficult jobs to perform,” that they “seek safety, but they are not infallible,” and that they may “be ignorant of mine or another participant’s fitness or abilities” and “may give inadequate warnings or instructions.”
The court related that waivers should be read “as a whole” in order to decide on their clarity and pointed to three other sections which contribute to a signer’s understanding of its effect:
a). I AM ULTIMATELY RESPONSIBLE for my own safety during my use of or participation in [Rock Gym] facilities, equipment, rentals or activities.
b). By signing this document, I acknowledge that if anyone is hurt or killed or property is damaged during my participation in or use of [Rock Gym] activities or premises or facilities or rental equipment, I may be found by a court of law to have waived my right to maintain a lawsuit against [the Rock Gym] on the basis of any claim from which I have released them herein.
c). I HAVE READ AND UNDERSTOOD [THE RELEASE], AND I AGREE TO BE BOUND BY ITS TERMS.
4. The release must not violate public policy.
Donahue did not challenge the waiver on public policy grounds, so the fourth characteristic of a valid release is satisfied here. Alaska recognizes that recreational waivers of liability for negligence are not void as a matter of public policy.
5. Regardless of whether falling and instructor negligence are inherent risks of rock climbing, the release specifically disclaims liability for them.
The fifth characteristic of a valid waiver is that “if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so.” In the Rock Gym waiver here, the injury and its alleged causes are all specifically listed in the waiver. The waiver specifically covers negligence claims, falls, impact with the ground, and inadequate warnings or instructions.
6. The release does not represent or imply standards of safety or maintenance that conflict with an intent to release negligence claims.
The Rock Gym waiver does not provide assurances of safety; in fact, it stresses the fallibility of the Rock Gym’s employees, equipment, and facilities. It makes it clear that the equipment may fail, malfunction, or even be poorly maintained; further, it provides that staff are not perfect, may make mistakes, or supervise/instruct poorly.
Donahue argued that the advertisements of the Rock Gym impacted her understanding of the waiver, thereby creating ambiguity. The court held, however, that the waiver clearly defined climbing as an inherently risky activity. The advertisements are not modifications to the waiver and contain no implicit guarantees of safety or maintenance; hence, the court ruled that the waiver satisfied all characteristics of a valid waiver.
The court ruled the waiver was valid and enforceable and affirmed the superior court’s grant of summary judgment to the Rock Gym.