A Unique Challenge to a Waiver – Retract the Waiver

By Doyice Cotten

In this case, two persons (Cynthia Mowery and Brian Alexander), injured in separate incidents, sued The Eastern Shore Criminal Justice Academy and the instructor, Barry Smith, alleging gross negligence in causing serious injuries. Each was in training at the Academy and each had signed a liability waiver (Mowery v. Smith, 2019).

The Unique Defense

The case addressed several issues, including Maryland waiver law [which will be presented in greater detail in a subsequent post]. Here, we will look at a unique strategy taken by the plaintiffs – two years after the injuries, the plaintiffs retracted their waivers. This was based on language in the waiver that stated that the waiver “… will remain effective…until and unless express written notice of cancellation is received.”

Therefore, plaintiffs asserted that the waivers were no longer enforceable against them because they had retracted the waivers. Plaintiffs held that this language authorized them to retroactively cancel the waivers.

Needless to say, defendants disagreed claiming that this interpretation would render the waivers meaningless, enabling Academy students to simply cancel the waiver if it was ever invoked as a defense.

Ruling

The court explained that Maryland law has settled that “contracts should not be interpreted in a manner that would render their terms meaningless.”  It cited case law that held that plaintiffs cannot retroactively cancel a contract merely because its terms are no longer to their advantage – meaning that a party cannot rescind or modify a contract simply because conditions have changed.

Accordingly, the Court found that the waiver was binding over the conduct of the parties during the period at hand.

Risk Management Take-Away

Be certain you know what your waiver says  — and that the language can be interpreted in only one way. Some courts might well have ruled the waiver unenforceable because of that one sentence.

Photo Credit: Thanks to Presidio of Monterey via Flickr.