Does Your Waiver Make any Promises to Your Clients?

By Doyice Cotten

It is not uncommon in liability waivers for the writer to include such language as a promise of safety, an effort to make the activity safe, a promise of safe equipment, an assurance of good supervision, and/or assertion of well-trained staff or instructors.  However, as you will learn in this post, this is not a very good idea. While this case deals only with Alaska waiver law, the inclusion of such promises in your waiver  might bear reconsideration.

In a 2004 rock climbing case, the Alaska Supreme Court case (Ledgends, Inc. v. Kerr) supplied the foundation for the element that a waiver must not represent or insinuate standards of safety or maintenance. The waiver included statements such as “while we try to make the premises safe” and “while we strive to provide appropriate equipment … and to keep the equipment in good condition.” The court pointed out the conflict created when a waiver attempts to both represent a standard of maintenance and disclaim liability for failing to adhere to that standard of maintenance. The waiver was not enforced because when read as a whole, it did not conspicuously and unequivocally alert climbers that they are giving up claims beyond those related to inherent risks. It did not “clearly alert climbers that they were giving up claims that the Gym failed to meet the standards of maintenance and safety that the Gym specifically indicates in release that it will strive to achieve and upon which the release may have been predicated.”

In another rock climbing case (Donahue v. Ledgends, 2014), the Alaska Supreme Court accepted the six element test used by the superior court, thereby establishing the six element test as the standard for waiver validity in Alaska. Whether the waiver represented or insinuated standards of safety or maintenance served as the sixth element in the test. Plaintiff in the case argued that there was an implication that the climbing gym was safe. In addition, she claimed she relied on advertisements run by the Rock Gym giving “assurances that the gym was ‘a safe place’ and the class ‘would be a safe way to learn to climb.’  The court found, however, that the waiver language not only did not promise safe participation, but actually highlighted “the fallibility of the Rock Gym’s employees, equipment, and facilities, explicitly stating that the equipment may ‘fail, malfunction [,] or be poorly maintained’ and that the staff is” fallible, may be ignorant of a climber’s skill or fitness, and may err in warning or instructing. The waiver met the six element test and was enforced.

In a 2018 Alaska Supreme Court whitewater rafting case (Langlois v. Nova River runners, Inc.), the six element test was used to determine the effectiveness of a liability waiver of negligence. The Langlois court noted that the waiver in Donahue pointed out possible fallibility of the provider and employees, but stressed that the six element test does not require that. In any event, however, the court clarified that the Langlois waiver did include as inherent risks “[l]oss of control of the craft” and “sinking of the craft,” thereby raising the possibility of human error, fallible equipment, and adverse forces of nature.

When the court compared the waiver language with that of Kerr, it found that the Kerr waiver had language representing safety standards throughout; in comparison, the Langlois waiver included only a single half-sentence on standards and safety. In addition, the waiver only stated that “reasonable steps” were taken —  “Although the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled, this activity is not without risk. Certain risks cannot be eliminated without destroying the unique character of the activity.”

The court found that the waiver satisfactorily met the six element test and affirmed the superior court’s grant of summary judgment in favor of Nova River Runners.

Risk Management Take-Away

Providers are advised to take a look at your waiver and see if you are giving any assurances or making any promises you cannot deliver. If so, you might consider having your waiver modified.