A Fatal Flaw in a Waiver

This article was taken from Waivers & Releases of Liability 7th ed. and updated for SportWaiver.com. Click SportWaiver for a limited time special price on the book.

By Doyice Cotten

No waiver is perfectly written, but they do not have to be.  They just have to make the intent of the parties perfectly clear.  There is one flaw, however, that can result in waiver failure every time. That flaw is to fail to name the party seeking protection.

One would think that the party seeking protection would always be named, but, all too often, it is not. It would seem that naming the protected parties would go without saying, however, it is surprising how many waivers fail for this reason. The corporate entity, its employees, volunteers, agents, sponsors, independent contractors, insurance carrier, equipment manufacturer and suppliers, owners of the property you rent or use, and any others that you intend to protect should be listed either by specific name or function. A general inclusiveness clause such as “… and all others who are involved.” can conclude the listing.

In a New Jersey suit (Bailey v. Palladino, 2006), Bailey signed a waiver for a Brazilian Jiu Jitsu course. When he was injured, the waiver failed to protect the International Martial Arts Training Center because it was not named in the agreement. Note the flawed waiver language:

… I do hereby waive, release and forever discharge its instructors, officers, agents, employees, representatives, executors and all responsibilities or liability for injuries or damages resulting from my participation in any activities in said program.

In Kolosnitsyn v. Crystal Mountain Inc. (2009), Kolosnitsyn was injured while skiing at the Defendant’s Washington ski resort when he fell off a trail into a creek. The waiver stated “I AGREE TO RELEASE … the ski/snowboarding shop, its employees, owners, affiliates, agents, officers, directors, and the manufacturers and distributors of this equipment … from all liability for injury.” Obviously, the ski resort is not named in the waiver.

In a Massachusetts case (Powers v. Mukpo,, 2000), a client at a riding academy located on Woodlock Farm was injured while riding.  The riding academy was not protected because the waiver language, “I voluntarily release Woodcock Farm, its instructors, and agents from …”, did not specify the academy.

In Ruppa v. American States Ins. Co. (1979), the Wisconsin waiver specified that sponsors were released and failed to identify the parties involved. None of the defendants were listed in the program in the list of sponsors. The court ruled that the defendants were not adequately identified in the waiver. In another Wisconsin case (Park-Childs v. Mrotek’s, Inc. 1998), the waiver was worded so as to release the individual, but not her business, from liability.  The waiver was not upheld.

How Specific?

How specific one needs to be in listing parties for whom protection is intended varies from state to state. A waiver in a Maine case (Amburgey v. Atomic Ski USA, Inc., 2007) failed to protect a manufacturer because the manufacturer was not specifically named in the waiver. The court stated that the general rule is that a contract generally does not bestow enforceable rights on a non-signatory (a signatory is one who signs a document or contract). To invoke the protection of a release on a non-signatory, one must clearly show that the protection was intended by the signers of the contract. The court stressed the importance of making certain that parties intended to benefit be conspicuous. The waiver in question failed to protect the manufacture because 1) the manufacturer was not named, 2) the language was in fine print, 3) buried on the second page, and 4) buried within a long sentence. On the other hand, North Carolina courts are much more likely to enforce waivers intended to protect non-signatories. In Brown v. Robins (2007), the release language was “all other persons, firms, or corporations who are or might be liable from all claims of any kind.”  The court stated that “it is clear defendants were direct intended third-party beneficiaries of the releases.”  In a successful California waiver reported in Lashley v. East County Gymnastics (2001), owners, managers, promoters, lessees of premises, premises and event inspectors, underwriters, and consultants were named.

A Nebraska court (Palmer v. Lakeside Wellness Center, 2011), in determining if an equipment manufacturer was protected by a health club waiver, stated that for not-named parties to be protected as third party beneficiaries, the waiver must expressly stipulate that such parties were intended as a protected party. The waiver failed.

In Iowa, the  Huber v. Hovey court (1993) ruled the waiver did not protect the insurer because it was not named in the waiver.  The insurer was named in the suit for negligent inspection of the racetrack.

The writers of an amusing 2010 Texas waiver (Last v. Quail Valley Country Club) did not make this mistake. The waiver read:

I also release and hold harmless Bull Power, any operator, sponsor, club owner, managers, or landlords or anyone you can think of in connection with….

Interestingly, the waiver was enforced. Courts in Texas must have a good sense of humor.

Summary

The message is simple! Name either by name or by function all parties that you want to be protected by the waiver.