A Waiver Administration Tip

By Doyice Cotten

Usually, courts will not enforce a waiver against an injured party who did not sign the waiver; this is true even if another party “signed it for the participant.”  Thus, it is always best practice for the service provider to require that each participant sign a waiver prior to participation.4338628451_e1b3a77193_m

The ski resort Wild Mountain, Inc., however, got lucky in a 2014 Minnesota case involving an injured skier (Bergin v. Wild Mountain, Inc.). In March 2010, over the internet Robert Knight purchased  two 2010-2011 season passes to Wild Mountain – one for himself and the other for Lee Bergin. Knight was required to agree to a season-pass agreement which included a release of liability.

Knight was reimbursed for the cost of Bergin’s pass and did not ask Bergin about the release of liability before agreeing to it. Bergin admitted 1) that he authorized Knight to purchase the season pass; 2) admitted that he had agreed to a release of liability each year for several years; and 3) admitted that he would have authorized Knight to purchase the season pass had he known about the release of liability.

In November, Bergin was injured while skiing and underwent surgery. He then filed suit alleging negligence and gross negligence on the part of Wild Mountain. The court ruled that there was no evidence of gross negligence and that the waiver released Wild Mountain from liability for its ordinary negligence. The court stated that “It is undisputed that Lee agreed to the exculpatory clause in the season-pass agreement before receiving the season-pass card.”

A more likely result would resemble that in the Utah case In re Aramark Sports and Entertainment Services, LLC (2012). One man (Prescott) rented a powerboat for a daytrip to Rainbow Bridge for himself, his wife, and two other couples. Only Mr. Prescott signed the waiver and indemnification agreement. At some point the boat sank for an undetermined reason and both the Prescotts and one other couple drowned; one couple survived. The court, using Admiralty Law since the incident occurred on a navigable waterway, ruled that the waiver and indemnity agreement were enforceable only against Mr. Prescott and his estate. The other parties (or their estates) were not bound by the waiver or indemnity agreement and could sue Aramark; however, after any loss, Aramark would be able to seek reimbursement for the loss from the indemnifier, Mr. Prescott’s estate.

So the obvious path to take is for all service providers to require that all participants sign a waiver.