Featured Article:

Evaluating a Waiver

By Doyice Cotten


 

In waiver cases, a court has to determine if the liability waiver does, indeed, protect the defendant from liability for negligence. In this post, we will examine a recent waiver addressed in Garvine v. Maryland, (2018) to see how courts address this task and give the reader a little insight into the sometimes complicated process of evaluation.

 

Waiver in Question

Oxford Feed & Lumber is not responsible for any person, horse or your property during the trail ride. Please secure your belongings and trailer. Participate at your own risk. Rider cannot participate unless this form is filled out completely and SIGNED.

Maryland Waiver Law

 The court summarized Maryland waiver law as follows:

  • The court stated that it is well settled and “consistent with the public policy of freedom of contract that exculpatory contractual clauses generally are valid.”
  • The court then pointed out that the first issue is to determine if the waiver is actually exculpatory in nature.
  • It stated that “’the adequacy of the clause to shield one of the parties from liability’ turns on ‘the intention of the parties,’ which requires construing the language of the subject clause.”
  • It noted the general rule: “contracts will not be construed to indemnify a person against his own negligence unless an intention to do so is expressed in those very words or in other unequivocal terms.”
  • An exculpatory clause must be “unambiguous but also understandable.” In order to immunize a defendant from negligence liability, the clause must “clearly and specifically indicate the intent to release the defendant from liability for personal injury caused by the defendant’s negligence.”
  • The “exculpatory clause need not contain or use the word ‘negligence’ or any other ‘magic words.'” However, the clause must define the scope of liability from which the parties “clearly, unequivocally, specifically, and unmistakably express [their] intention to exculpate the [defendant].”

Comments of the Court

  • The court points out that the only specific situations (or risks) contemplated by the waiver are those regarding participants’ personal belongings and horse trailers.
  • The clause that Ms. Garvine signed here fails to “clearly, unequivocally, specifically, and unmistakably” show any intent of participants in the trail ride to release Oxford from liability for falls caused by negligent conditions on or adjacent to the trail.
  • The clause does not clearly exonerate Oxford of liability for injury suffered as a result of an unreasonable failure to maintain the premises.
  • It noted that a reasonable person could certainly find that the waiver does not unambiguously reach the type of negligence on the part of Oxford that plaintiff alleges.

Ruling

The court declined to grant the defense motion for summary judgment on the basis of the waiver.

Conclusion

The nature of this waiver makes its evaluation fairly easy. It is very short, but length is not always important. Waivers shorter than this one have been enforced on occasion. An early Tennessee court enforced a waiver that read only “I am hiring your horse to ride today and all future rides at my own risk.” Today, however, courts utilize a higher bar when an exculpatory agreement attempts to waive the negligence of a provider.

It should be noted that these requirements apply specifically to the State of Maryland. Most states differ somewhat (for instance, a number of states do require the use of the term negligence or one of equal meaning.)

 

 

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