By Doyice Cotten
Two major problems with liability waivers are that they are sometimes misunderstood and misused by owners or managers of sport businesses. First, some sport managers think that a liability waiver provides total protection against lawsuits for injury. They think they are completely protected against loss. But waivers do not always work! Sometimes there are statutes prohibiting their use (e.g., G.O.L 5-326 in NY prohibiting waivers when there is an entry fee). Sometimes the waiver is poorly written (e.g., there may be ambiguity as to whether the release applies to provider negligence). Sometimes the action exceeds the scope of a waiver (e.g., when there is gross negligence).
Second, is the uncommon manager who, thinking he is protected by the waiver, has little regard for the safety of clients and does little to control or reduce risks they face. While most managers are concerned about the safety of the client and take all possible steps to find and reduce hazards and risks, this second manager reasons that if someone is hurt, the company is protected from suit by the waiver – and thus has no concern for the well-being of the client. These managers, who are indeed exceptions, have little or no understanding of either the meaning of “risk management,” or the need for it.
In a Pennsylvania case (Melendez v. Happy Trails and Riding Center, Inc., 2016), a man fell from a rented horse during a guided group horseback ride when a stirrup broke. The waiver protected Happy Trails from liability for negligence; however, there was also the issue of recklessness on the part of the stables – and, of course, liability for recklessness is not protected by a waiver.
Did These Actions Constitute Reckless Conduct by Happy Trails?
The court discussed recklessness, saying
Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.It added that conduct is reckless if one does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent. (quoting Restatement (Second) of Torts § 500).
The court said that it was the responsibility of Happy Trails, not the customer, to inspect the equipment. It then indicated that Happy Trails’ business procedures were lackadaisical. For example, Happy Trails owner:
- Kept no records of inspections or repairs.
- Was not able to say if any inspection of the specific stirrup occurred on the day of the accident.
- Testified that he bought used saddles on the internet and from individuals who walk into his business.
- Was unable to say where he procured the saddle in question.
- Was unable to say how long he had had it.
- Was unable to say how old it was.
Additionally, the court noted that Happy Trails’ owner displayed a somewhat cavalier attitude towards safety, asserting that customers assume all risks associated with the activity, including equipment breaking, staff failing to put equipment on the horses correctly, and even staff failing to provide basic equipment like stirrups or a bridal.
Viewing the record in a light most favorable to Plaintiff, a question of fact therefore remains as to whether Defendant’s action rose to the level of recklessness; summary judgment in favor of the defendant was DENIED.
Here the Happy Trails owner’s lack of risk management coupled with his “cavalier attitude toward safety” cost the company dearly. Renting a defective saddle was at worst ordinary negligence – for which the waiver protected. But the aggregate of his actions (or in this case, inactions), coupled with his attitude toward safety, was enough to say that they, taken all together, constitute a question of fact as to recklessness. Basic fundamentals of risk management – inspections, records, care that equipment is safe, safety signage, and more – should be the rule in any business.