By Doyice Cotten
When I travel, I make it a habit to pick up liability waivers wherever I go. On a recent trip to Florida I visited a number of water sport businesses. Of the waivers I obtained, I would like to compare two. To protect the innocent, I will call one Oops Watersports and the other OK Watersports. The Oops agreement is primarily an equipment rental agreement; the OK agreement is a full-fledged, full page waiver agreement. The reader is invited to compare the two agreements and see which would allow him or her, as the business owner, to sleep better at night.
Oops Watersports Waiver (rental agreement)
This was labeled a rental agreement, but obviously was also intended for protection against liability. It contained a numbered list of 11 items. The first was:
1. Boat rentals are at your own risk. Oops Watersports and staff are not responsible for personal injury or loss of property.
2. – 6. Contained rules including age requirements, flotation devices, children, alcohol, and motors.
7. Renter will be required to reimburse Oops Watersports for all damaged or lost equipment.
8. – 11. Contained rules regarding wildlife, trash, and an ID deposit.
There were two warnings: One advising caution in the oyster shell areas and one regarding a $50 late fee per hour.
Then the Waiver section followed in italics:
The risk of injury from all activities, including boat rental and wind sailing, involved in this program can be significant, including the potential of personal injury, property damage, or wrongful death resulting from any cause. I also understand and agree with all the vessel rental rules and regulations as stated above. I hereby release Oops Watersports from liability for personal injury, property damage, or wrongful death.
Then, a signature area followed by rules including boundaries, no beaching at mangrove shore, where to return vessels, removing anything from state property, wear a life jacket if you cannot swim, and keep track of time. One safety warning: Use caution in windy conditions and keep boathouse in sight.
OK Watersports Waiver
The pertinent parts of a full page waiver follows:
Assumption & Acknowledgment of Risks – Release of Liability and Indemnity Agreement
In consideration for being allowed to participate in OK Watersports activities … or equipment …, for myself or my minor children for whom I am parent, legal guardian or otherwise legally responsible, and for my heirs, personal representatives or assigns:
1. Acknowledgement of Risks: I acknowledge that watersports … are very dangerous and involve risk of SERIOUS INJURY and/or DEATH. Risks include, but are not limited to, … [Waiver list a number of dangers and risks] and warns “may cause serious injury, disability, paralysis and/or death.”
2. Express Assumption of Risk and Responsibility: I agree to assume responsibility for all the risks of the activity, whether listed above or not, EVEN THOSE RISKS ARISING OUT OF THE NEGLIGENCE OF THE RELEASEES NAMED BELOW. My participation . . . is purly voluntary. I assume full responsibility for myself and any minor children for whom I am responsible … for any bodily injury, accident, illness, paralysis, death or loss of personal property even IF CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE OF THE RELEASEES NAMED BELOW, to the fullest extent permitted by law. [Signer then acknowledges and agrees to rules regarding the equipment.
3. Release: I hereby release OK Watersports [included employees & others associated] … FROM ANY AND ALL LIABILITY OF ANY NATURE FOR ANY AND ALL INJURY OR DAMAGE (INCLUDING DEATH) TO ME OR MY MINOR CHILDREN … as a result of participation in these activities or events, EVEN IF CAUSED BY THE NEGLIGENCE OF ANY OF THE RELEASEES NAMED ABOVE OR ANY OTHER PERSONS (INCLUDING MYSELF) to the fullest extent permitted by law.
4. Indemnity: I hereby agree to INDEMNITY AND SAVE AND HOLD HARMLESS the releasees … FROM ANY LOSS, LIABILITY , DAMAGE OR COST that may incur arising out of, or related to the use of any equipment provided to me, or arising out of or releated to any participation in any watersports … based recreational activity, WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.
[This is followed by another statement summarizing the above, the intent to release, age of 18 or greater, and agreement with the previous information. Then there is a signature section including space for printed name, signature, age, date, and ages, names, and signatures of minors.]
Neither waiver is perfect, but I think one who knows nothing of waivers could distinguish a significant difference here. Think about it: each owner is investing time and a significant amount of money in these two businesses. The livelihood of families may depend on the financial solvency of the businesses.
The Oops Watersports agreement provides no protection against liability for injuries resulting from the negligence of Oops. Some protection might be derived from “I hereby release Oops Watersports from liability for personal injury, property damage, or wrongful death.” That protection would be from inherent risk related injuries, not negligence.
On the other hand OK Watersports covers liability for injuries both due to the inherent risks and from the negligence of OK. It also provides for indemnification, which may or may not be enforced. One flaw in the waiver is the belief that the waiver will protect OK from liability for negligence injuries to minor clients. The Florida Supreme court (Kirton v. Fields, 2008) has ruled that waivers protecting private businesses from liability for negligence caused injuries to minors are not enforceable.
The point is that a well-written, comprehensive waiver developed specifically for your business is much more likely to provide protection than a brief effort as that used by Oops Watersports.
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