A Tale of 3 Waivers
By Doyice Cotten
On a recent trip to North Carolina, I picked up a copy of their waiver from three whitewater rafting companies – Nantahala Outdoor Center, Inc. (NOC), Carolina Outfitters, Inc., and Whitewater LTD Rafting. The waiver of each company is probably adequate to protect the company from liability for injuries resulting from negligence of the operator or from the inherent risks of the operator. Some important points from each waiver will be examined here.
First, we will look at the approaches to protection against the inherent risks of rafting. The Nantahala waiver has a major weakness relating to inherent risks. Basically, it does not specify what the inherent risks are. In fact, it does not even include the words “whitewater rafting” in the waiver and simply says “In consideration of being allowed to participate in any way in the program, related events and activities….” It does state that the risk of injury “is significant, including the potential for permanent paralysis and death.”
In contrast, Wildwater and Carolina each describe the risks in great detail. Wildwater states “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.”
Carolina states “including, but not limited to drowning, hypothermia, fractures, partial or complete paralysis, injuries from being thrown from the boat, being struck by branches or overhanging tree limbs, river obstructions, foot entrapment in rocks in the river bed, paddle blows, bee stings, or animal bites, and disease, any of which could cause serious disability or death.“
Negligence of the Company
Next, we will look at the approach by each waiver to protect the company from liability for injuries resulting from the negligence of the company. In the Nantahala waiver, the signer agreed to the statement: “I KNOWINGLY AND FREELY ASSUME ALL SUCH RISKS [referring to the inherent risks in the previous paragraph], both known and unknown, EVEN IF ARISING FROM THE NEGLIGENCE OF THE RELEASEES or others, and assume full responsibility for my participation.” In a later numbered paragraph, the waiver states:
I, for myself and on behalf of my heirs, assigns, personal representatives and next of kin, HERBY RELEASE, INDEMNIFY, AND HOLD HARMLESS NANTAHALA OUTDOOR CENTER, INC., its officers, officials, agents and/or employees, other participants, sponsors, advertisers, the United States, Tennessee Valley Authority, Southeast Local Development Corporation, the State of Tennesseee and, if applicable, owners and lessors or premises used to conduct the event (RELEASEES) from any and all claims, demands, losses, and liability arising out of or related to any INJURY, DISABILITY OR DEATH I may suffer, or loss or damage to person or property, WHETHER ARISING FROM THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent permitted by law.
The Wildwater and Carolina waivers each contained near identical language to that of the Nantahala waiver, but each went a little farther. Wildwater stated that
Risks and dangers may arise from foreseeable or unforeseeable causes including, but not limited to, staff decision making, including that staff may misjudge terrain, weather, transportation, trail or river route location, and water level, risks of falling out of or drowning while in a raft, canoe or kayak and such other risks and hazards and dangers that are integral to recreational activities that take place in a wilderness, outdoor or recreational environment.
Similarly, the Carolina waiver included the following language:
The risks and dangers may arise from guide or personnel decision-making, including, but not limited to that a guide or other personnel may misjudge terrain, weather, river conditions, water levels, and river navigation routes, as well as other risks, hazards, and dangers, both known and unknown, that are inherent to the recreational activities.
This additional language in the Wildwater and Carolina waivers may effectively convert the named risks from company or staff negligence to inherent risks – thereby, reducing the potential liability of the companies.
Breach of Contract Penalty Fee
The Carolina waiver contains one paragraph that is, at best, questionable.
I agree that I will be obligated and responsible for a $100,000.00 penalty fee which I, agree to be assessed automatically against me in the event that I or my respective heirs, assigns, personal agents or beneficiaries institute or attempt to seek legal recourse against any party, person, or entity unto which this document is given.
“Liquidated damages” provisions such as this are generally not enforced by courts if they are considered to be “penalty provisions,” or if the actual damages are easily calculable. This waiver actually labels it as a “penalty fee”; further, actual damages in a rafting injury case are easily calculated by medical and legal expenses incurred. While this paragraph is not likely to be enforced, it should not affect the enforceability of the waiver because the waiver also contains a severability clause which means that if any part of the waiver is unenforceable, the remainder stands.
Each waiver had a section for parents of minor participants at the bottom of the waiver. Interestingly, all three waivers used identical language.
As I said earlier, all three waivers will likely protect the company from liability for most incidents. However, based on the above discussion, both the Carolina and the Wildwater waivers seem to be stronger. The key take-away… make sure your waiver is a strong one. It is better to be over-protected than under-protected.