Do Waivers Protect when the Injured Party has a Disability?

By Doyice Cotten

Sometimes activity providers are reluctant to offer activities to participants with disabilities because they fear possible injury and have doubt as to whether their liability waiver would be enforceable against a person with a disability. The following is a case that is more than 20 years old, but that accurately illustrates that there is no “special waiver law” for the disabled.

Franklin Potter, a skilled and experienced handicapped skier, was injured in the National Handicapped Downhill Championships race. He claimed the injury resulted when a volunteer race official was negligently standing on or near the race finish line, thereby causing Potter to fall and fracture his hip (Potter v. National Handicapped Sports, 849 F.Supp. 1407, 1994).

Potter’s Claims

Potter contends that the releases are invalid.

  • First, he claims that these exculpatory agreements are void as a matter of public policy because of the nature of NHS’s services to handicapped individuals and its duty to the public.
  • Second, he asserts that the agreements are neither clear nor unambiguous.
  • He further argues that even if the releases are valid as to a negligence claim, they are inapplicable here because NHS was willfully and wantonly negligent.

In response, NHS asserts that the exculpatory agreements completely bar Potter’s claim in this case.

Court Response

The court relied on Colorado law. It cited Day v. Snowmass Stables, Inc.(1993) and Jones v. Dressel (1981) regarding the  determination of the sufficiency and validity of an exculpatory agreement. It noted that waivers have long been disfavored – and that due to their one-sidedness, they are to be strictly construed against the drafter. It noted that Colorado courts look to four factors in determining the validity of an exculpatory contract:

  • the existence of a duty to the public;
  • the nature of the service/activity performed;
  • whether the contract was entered into fairly; and
  • whether the intention of the parties is expressed in clear and unambiguous language.

Potter contended that NHS breached its duty to the public by failing to keep the race course free from obstacles. In response, the court stated that, for an exculpatory agreement to fail under the first factor, “the party seeking exculpation must be engaged in providing a service of great importance to the public.” By common sense, Potter was injured while participating in a recreational activity – a matter not of great importance to the public.

Potter argued that the waivers were invalid because handicapped racers have a limited range of options available in which to participate in competitive sporting events. The court said that while this may be true, Potter is wrong in contending that ski racing for handicapped skiers rises to the level of an essential service. In other words, there is no cut-out or exception in waiver law that applies solely to handicapped persons.

Regarding the fourth factor, Potter argued that the waivers did not clearly and unambiguously release NHS from liability for the claim.  The court noted lack of ambiguity in the following section of the waiver:

By my signature below, I am stating that I fully understand that skiing is an inherently hazardous sport and that there is an even higher risk of personal injury when training or racing on downhill … courses. I am hereby stating that I understand that courses and conditions vary and will change with skier use, weather changes, and other factors resulting in bare spots, variations in snow, ice, and terrain along with bumps, ruts, moguls, stumps, forest growth, and debris, rocks and many other hazards. I also recognize that rocks, trees, snowmaking pipes, lift towers, and other hazards are almost always adjacent to such courses.

. . . . .

By my signature below, I do hereby release and agree to hold harmless and indemnify the directors, officers, shareholders, agents, servants, and employees of Aspen Highlands, National Handicapped Sports … and their insurance carriers from any and all claims, actions, or damages without any limitation whatsoever, whether consisting of person injury … that results in any way from my participation in the U.S. Disabled Ski Championship.

The court noted that under Colorado law, the use of the specific term “negligence” is not required for an exculpatory agreement to shield a party from claims based on negligence. It added that the intent to extinguish liability was clear and unambiguous.


The court ruled that the action leading to the injury was ordinary negligence at best and did not rise to the level of wanton or willful actions as alleged by the plaintiff. The court granted summary judgment in favor of the plaintiff, National Handicapped Sports, based on the liability waiver signed by the plaintiff.

Photo Credit: Thanks to Fort Carson via Flickr.