By Doyice Cotten

A university soccer player and his mother signed a waiver so he could participate on the intercollegiate soccer team. The student was injured at a mandatory strength workout when an elastic exercise band  came loose from a j hook and struck the player in his eyes.

The student and mother sued alleging negligence (a motion to change the claim to gross negligence was denied). The court granted summary judgment based on the waiver. This report is the appeal (Sinu v. Concordia University, 2023).

 Waiver

The waiver read:                           “Assumption of Risk and Waiver of Liability Release,”

PLEASE READ THE FOLLOWING CAREFULLY.

If you have any questions or concerns, please visit with an attorney before signing this document. This release must be signed before participation in activities at [the university] is allowed.

I acknowledge that my participation in certain activities including, but not limited to, intercollegiate athletics intramural sports, use of [the Walz], P.E. Center, [u]niversity stadium field/track, adjacent [u]niversity athletic fields and the City of Seward’s Plum Creek Park may be hazardous, that my presence and participation are solely at my own risk, and that I assume full responsibility for any resulting injuries, damages, or death.

In consideration of being allowed to participate in such activities and/or being provided access and the opportunity to use the Walz and other [u]niversity facilities and equipment, and in full recognition and appreciation of the danger and risks inherent in such physical activity, I do hereby waive, release and forever discharge the [u]niversity, its officers, directors, agents, employees and representatives, from and against any and all claims, demands, injuries, actions or causes of action, for costs, expenses or damages to personal property, or personal injury, or death, which may result from my presence at or participation in any such [u]niversity activities.

I further agree to indemnify and hold the [u]niversity, its officers, directors, agents, employees and representatives harmless from any loss, liability, damage or costs including court costs and attorney’s fees incurred as a result of my presence at or participation in any such activities. I also understand that this [release] binds me, my personal representatives, estate, heirs, next of kin and assigns.

I have read the [release] and fully understand it and agree to be legally bound by it.

Beneath a line for the student’s signature, the release contained the following section, with boldface type as it appeared on the document:  If 18 years of age or younger, signature of parent/ guardian is also required.

I, as the parent or guardian of the above-named minor, have read the [release], fully understand it, and hereby voluntarily agree and execute the [release] on behalf of myself as well as the above-named minor and agree that the minor and I are legally bound by it. [All bold emphasis is added to help the reader locate key language.]

The parent signed because the minor player was 18 years old.

 Rulings

The trial court granted summary judgment based on the waiver. In the appeal, The appellate court stated:

The release is a type of exculpatory clause. An exculpatory clause is “[a] contractual provision relieving a party from liability resulting from a negligent or wrongful act.” Such clauses purport to deny an injured party the right to recover damages from the very person or entity which negligently caused the injury.

The court finally ruled the release signed by the student and his mother was valid and enforceable and relieved the university of liability for its ordinary negligence.

 Reaction

This ruling was a surprise to this writer. A careful read of the waiver not only failed to use the word “negligence,” but also failed to indicate that it applied to the behavior of the University.

 The court points out that the word “negligence” does not have to appear in a waiver. It stated that a waiver is

“governed by principles generally applied in construction or interpretation of other contracts; but added “The provision must be looked at as a whole and given a reasonable construction. If there is no specific reference to liability for negligence, it must otherwise clearly appear from the language used or from a determination that no other meaning could be ascribed to the contract such that the court is firmly convinced that such interpretation reflects the intention of the parties.  

The court added that the intent was clear in this case. Regarding the construction of exculpatory agreements, the court also said:

Both exculpatory and indemnity clauses must make clear the effect of the agreement. And such a clause is strictly construed against the party claiming its benefit. ‘Exculpatory clauses are enforceable only where and to the extent that the intention to be relieved was made clear and unequivocal in the contract, and the wording must be so clear and understandable that an ordinary and knowledgeable party will know what he [or she] is contracting away.”

I would only contend two things here. First, courts in the states that require the word “negligence” in a waiver would not enforce this waiver. Second, it is my belief that many, if not most, of the courts in states NOT requiring “negligence” would not find that this waiver met the requirement “that no other meaning could be ascribed to the contract such that the court is convinced that such interpretation reflects the intention of the parties.”

In light of the fact that this ruling comes to us from the Supreme Court of Nebraska, one might conclude that the bar for an enforceable waiver is set very low in Nebraska. And, there is nothing wrong with that – in fact, the court should receive kudos for consistency. The 1985 Nebraska Supreme Court made it clear in Mayer v. Howard when it stated that waivers are enforceable “unless they are clearly repugnant to the public conscience.” For those who would like to read the interesting discussion in the case, click HERE..

FYI — As I noted above, I was surprised by parts of this ruling. Then the thought crossed my mind, what did I say in my waiver book, Waivers & Releases of Liability, 10th ed. There it was, the Mayer v. Howard case and the conclusion was that chances of a waiver being enforced were Good. If you don’t have your copy, click Waivers.https://www.sportwaiver.com/book-waivers-releases-of-liability/

Photo Credit: thanks to Kiet Le via Flickr.