By Doyice Cotten
Ravi Thackurdeen drowned while swimming at a Costa Rican beach at the end of a college study abroad while enrolled at Duke University and the Organization for Tropical Studies (OTS). His parents sued both entities alleging wrongful death and negligence (including gross negligence) (Thackurdeen v. Duke Univ., 2018).
The students were taken on a “celebratory trip” to the beach on the last day of the trip. The complaint alleges the beach was rampant with rip currents, the students were told it was safe to swim, and there was no lifeguard. Further, plaintiffs claim the trip was not on the scheduled program. Ravi was caught in a rip current and drowned.
Duke and OTS claimed protection from liability based on waivers signed by Ravi and his father releasing each organization. Pertinent parts of each waiver is presented below:
Duke Authorization and Consent
We understand that participation in the program is voluntary and that any program of travel involves some element of risk. We agree that in partial consideration of Duke University sponsoring this activity and permitting the student to participate, we will not attempt to hold Duke University, its trustees, officers, agents and employees liable in damages for any injury or loss to person or property the student might sustain while so participating; and we hereby release Duke University, its trustees, officers, agents and employees from any liability whatsoever for any personal injury . . . arising from participation in the program.
OTS Release, Assumption of Risk, Waiver of Liability, and Hold Harmless Agreement
In return for the Organization for Tropical Studies and Duke University allowing me to participate in this activity and having read and understood this Participation Agreement, I hereby state that I agree to the following:
- I hereby RELEASE, WAIVE, DISCHARGE, AND COVENANT NOT TO SUE the Organization for Tropical Studies, Duke University, its trustees, officers, employees, or agents (hereinafter referred to as RELEASEES) … for any liability, claim and/or cause of action arising out of or related to any loss, damage, or injury, including death, that may be sustained by me . . . that occurs as a result of my traveling to and from, and participation in this activity.
- I agree to INDEMNIFY AND HOLD HARMLESS the RELEASEES whether injury or damage is caused by my negligence, the negligence of the RELEASEES, or the negligence of any third party from any loss, liability, damages or costs, including court costs and attorneys’ fees, that RELEASEES may incur due to may traveling to and from, and participation[*18] in this activity.
- It is my express intent that this RELEASE and HOLD HARMLESS AGREEMENT shall bind the members of my family … if I am alive, and my heirs, assigns and personal representative, if I am deceased, and shall be deemed as a RELEASE, WAIVER, DISCHARGE, and COVENANT NOT TO SUE the above-named RELEASEES.
- I understand that by participating in this activity I will ASSUME THE RISK of injury and damage from risks and damages that are inherent in any activity.
In response, the Thackurdeens argue that their claims are not barred by the doctrines of waiver and release because
(1) claims for gross negligence cannot be released under North Carolina law,
(2) the claims fall outside the scope of the releases, and
(3) the releases violate a substantial public interest.
After establishing that the choice of law in this case was that of the State of North Carolina, the court addressed plaintiffs’ gross negligence issue. The court stated that North Carolina law defines gross negligence as “wanton conduct done with conscious or reckless disregard for the rights and safety of others.” It went on to say that the plaintiff must show
(1) the defendant owed a duty to the plaintiff;
(2) the defendant breached that duty;
(3) the breach was a proximate cause of the injury;
(4) the plaintiff was injured as a result thereof and
(5) the defendant’s conduct was willful, wanton, or done with reckless indifference.
The court explained that “willful conduct is done with a deliberate purpose. Conduct is willful when it is carried out with a wicked purpose or with reckless indifference.” It further added that North Carolina courts have found that “the difference between negligence and gross negligence lies in the intentional or deliberate character of the actions of the defendant that are done purposefully and with the knowledge that the action is a breach of duty to plaintiff.”
The Thackurdeens alleged that Duke and OTS failed to exercise reasonable care and breached their duty to Ravi by:
- Taking their students to Playa Tortuga, a beach with notoriously deadly rip currents and no lifeguards on duty.
- Allowing their students to swim in Playa Tortuga, a beach with notoriously deadly rip currents and no lifeguards on duty.
- Failing to make reasonable and necessary inquiry into the dangerousness of Playa Tortuga prior to taking their students there.
- Failing to make the proper risk evaluations of Playa Tortuga prior to taking their students there.
- Failing to make reasonable inquiry into safe alternatives to Playa Tortuga prior to taking their students there.
- Failing to warn their students of the dangerous conditions of Playa Tortuga.
- Failing to warn their students of the dangers of swimming in Playa Tortuga, a beach with notoriously deadly rip currents.
- Failing to create and implement an emergency plan for potential dangers at Playa Tortuga.
- Failing to provide students with proper safety instructions or proper safety equipment for a trip to Playa Tortuga. Students were only instructed to swim parallel to shore if they were caught in a rip current.
- Failing to take proper precautions to make Playa Tortuga safer when they took their students there, including requesting lifeguards to be on duty.
- Failing to effectively assist Ravi after he was caught in the rip current and yelled out for help.
- Failing to rescue Ravi from drowning at Playa Tortuga.
The court concluded that the alleged conduct, even if true, did not rise to the level of gross negligence under North Carolina law.
Scope of the Waiver
Plaintiffs alleged that the surprise beach trip took place after the OTS study abroad program concluded and just one day prior to Ravi’s scheduled trip home. The trip served no educational purpose and was not placed onto the program schedule. It was not contemplated by Plaintiffs (or Ravi) at the time the releases were executed. Since the signers did not know of the trip to the beach, it was not possible that it was within the scope of the waiver.
The court determined that the “program” of the trip in the Duke waiver encompassed all activities for the whole semester. The court pointed out that the same was true of the OTS waiver language: “occurs as a result of . . . traveling to and from, and participation in this activity.” Hence, the court ruled that both waivers encompassed the beach trip.
Substantial Public Interest
The final argument by the plaintiffs was that the waivers were void because they violate a substantial public interest. In North Carolina, parties generally may contract to “bind themselves as they see fit” unless the contract violates the law or is against public policy. Such contracts that attempt to relieve a party from liability for damages incurred through personal negligence are discouraged and narrowly construed. Further, such contracts ”will never be so interpreted [to exempt liability for negligence] in the absence of clear and explicit words that such was the intent of the parties.” In fact, even if a waiver clearly and explicitly waives liability for negligence, it is unenforceable if it (1) is violative of a statute, (2) is gained through inequality of bargaining power, or (3) is contrary to a substantial public interest.
The court then looked at the types of situations that have been found to be contrary to a substantial public interest. It stated that an activity falls within the substantial public interest exception when the activity is extensively regulated to protect the public from danger. A waiver in that case would violate public policy. The court listed some regulated activities for which North Carolina courts have found liability waivers to be against the public interest: 1) a physician sued for negligence while performing an abortion (with both medicine and abortions being highly regulated); 2) a cosmetology school in training cosmetologists; and 3) a motorcycle safety class training in the use of motorcycles. In contrast, it pointed to a waiver used by a storage industry business when a client was injured by the unit door; the waiver was enforceable because the storage industry is not highly regulated.
Plaintiffs claimed that higher education is highly regulated, but the court pointed out that the industry involved in this incident was the activity of swimming in the ocean (an unregulated activity), not higher education. Consequently, the court ruled that the waiver was not against a substantial public interest and granted summary judgment in favor of the defendant educational entities.
Photo Credit: Thanks to Mathew Hurst via Flickr.