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What is a waiver and how is it used? Does a waiver always work? Why does a waiver fail?  How do I write an effective waiver?  What if the client is a minor?  See Liability Waivers 101. . .

Should You Worry about your Waiver Being Overly Broad?

P1290362By Doyice Cotten Waivers can fail to protect providers for a number of reasons. Often, they fail for being too narrow – for example, having the language fail to include the cause of the injury. Sometimes, however, the waiver writer attempts to be too inclusive and the waiver fails for being overly broad. In a Wisconsin equine case (Mettler v. Nellis, 2005), the waiver failed because the waiver was considered overly broad. The court ruled the language “any liability or responsibility for any accident damage, injury, or illness” encompassed more than injuries from horse-related injuries. It also said the waiver attempted to protect too many categories of parties. A Minnesota case (Wu v. Shattuck-St. Mary’s School, 2005), contained the language “harmless for all damages arising from personal injury or property loss.” The court deemed the language to include willful and wanton acts as well as intentional acts. Chadwick v. Colt Ross Outfitters (2004) also failed to enforce a waiver for similar reasons, holding them to be against public policy. In contrast is a ruling in a 2008 California case (Reimund v. Guthrie, 2008 Cal. App. Unpub. LEXIS 1336). A woman was injured when she visited a stables where her horse was boarded. Reimund was a frequent visitor to the facility. On the day before the date in question a horse had been “cross-tied” and left alone in the tie rack stalls. The horse cracked the vertical that helped divide two tie rack stalls. An owner of the facility worked on the wall and placed a plastic garbage can to block the hole. The next day, Reimund walked her horse to the tie rack stalls. While assessing the damage and what to do, another party, not realizing why the can was there, started dragging it away. This created a noise which startled Reimund’s horse who moved and pinned her to the fence rail, injuring her. Reimund filed suit alleging negligence and “willful failure to warn.”  The defendant countered claiming protection by a waiver signed by Reimund. The waiver read:

“DISCLAIMER OF AND RELEASE OF LIABILITY

“I/We the undersigned Boarder(s), as part of consideration for being permitted to board or keep a horse(s) at 8781 Palladay Road, Elverta, CA 95626, HEREBY RELEASE AND DISCHARGE AHE, its partners, Gloria Guthrie and Cindy Magness, Partners, their families and relatives, their agents and friends, employees, veterinarians, farriers, independent contracts or trainers or representatives (hereinafter ‘Releasees’) from any type or kind of liability arising out of or connected in any manner with said boarding or keeping of horses. AHE agrees to take every reasonable precaution to protect boarded horses from illness, accident, theft, fire through supervision, adequate equipment, proper feeding, etc. Nevertheless, injuries to horses sometimes do occur, as it is impossible to anticipate every contingency. Except in the event of gross negligence or willful misconduct, I/we shall not hold releasees liable for any sickness, disease, estray, theft, death or injury which may be suffered by any boarded horse during the time the horse is in the care, custody or control of releasees. IN ADDITION I/WE WAIVE OUR RIGHTS TO BRING ANY LEGAL ACTION AGAINST RELEASEES FOR ANY ACTIONS WHATSOEVER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH BOARDING, CONDITIONING, TRAINING, TRANSPORTING, SHOWING, MARKETING OR PROVIDING ANY OTHER EQUINE-RELATED SERVICE TO ME/US. THIS INCLUDES, BUT IS NOT LIMITED TO, ANY PERSONAL INJURY OR DISABILITY WHICH I/WE, MY/OUR FAMILY, FRIENDS, AGENTS OR EMPLOYEES, OR ANY THIRD PARTY MAY RECEIVE WHILE ON THE PREMISES OF AHE.

Plaintiff argued that the waiver did not apply because it did not specify “negligently maintained premises.”  The court disagreed saying that the language

WAIVE[D] [HER] RIGHTS TO BRING ANY LEGAL ACTION AGAINST [DEFENDANTS] FOR ANY ACTIONS WHATSOEVER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH BOARDING . . . OR PROVIDING ANY OTHER EQUINE-RELATED SERVICE TO [HER] . . . INCLUD[ING], BUT . . . NOT LIMITED TO, ANY PERSONAL INJURY . . . WHICH [SHE] . . . MAY RECEIVE WHILE ON THE PREMISES OF [THE BOARDING FACILITY]. (Underlined emphasis added.)

This is obviously very broad language. Note also the extensive list of protected parties:

AHE, its partners, Gloria Guthrie and Cindy Magness, Partners, their families and relatives, their agents and friends, employees, veterinarians, farriers, independent contracts or trainers or representatives (hereinafter ‘Releasees’)

Reimund contended that the waiver, because of its breadth, was “unconscionable” because it, in effect, gave the “defendants carte blanche to maintain the premises in an irresponsible and negligent manner.” Nevertheless, the court enforced the broad language and affirmed the trial court ruling in favor of the defendant. Take Away While some waivers have failed because a court deemed the waiver too broad, vastly more have failed as a result of being too narrowly written. Good risk management would suggest a use of a broadly worded waiver in most states.