By Doyice Cotten
Nicholas Weinrish was injured while operating a go-kart on the defendant’s track (Weinrich V. Lehigh Valley Grand Prix Inc., 2015). A piece of plastic covering a guardrail broke and protruded toward the track; plaintiff suffered an injury to his leg when he struck the plastic.
Weinrich had patronized the establishment six months earlier and had signed a waiver of liability at that time. When he returned in June, he was not asked to execute a second one. The track manager stated that repeat customers are not asked to re-execute the waiver. In Pennsylvania, waivers for participation in recreational activities generally function as a bar to liability because the party executing the release is free to choose whether or not he or she wants to participate in the activity. Such releases do not contravene public policy.
The relevant language of the release in question provides:
IN CONSIDERATION of being permitted to compete, officiate, observe, work, or participate in the EVENT(s), use the equipment, premises, facilities and/or services of Lehigh Valley Grand Prix, LLC., [the undersigned agrees to the release terms] …
Plaintiff argues that the waiver was no longer valid on the date in question; Defendant argues that the waiver still applies. As the reader can see, the waiver itself does not specify or establish the duration of the agreement; it neither limits the time for its applicability nor specifies the event or occasion to which it applies. The court stated that the issue of a waiver without a specified duration had not been addressed, but defendant relied on a Florida case (Cain v. Banka, 2006), which held a release unenforceable because the release contained no express language advising the plaintiff that it covered every future visit to a motocross track.
The court stated that
1) waivers generally only encompass matters within the contemplation of the parties;
2) waivers must be construed in accordance with traditional principles of contract law;
3) that courts must not invalidate such a waiver, but must infer that the intent was to apply for a “reasonable amount of time”;
4) what constitutes a “reasonable period of time” is a question of fact and must be resolved by the fact finder – the jury; and
5) summary judgment is inappropriate when there is a genuine issue of material fact.
Hence, the court denied Lehigh Valley’s summary judgment motion based upon the waiver.
Risk Management Take-Aways
- Make certain that your waiver specifies a duration. In some cases, it might be for the “event.” In other cases, it might appropriate for the duration to be for a season. In yet other cases, it might be of unlimited duration (e.g., forever, on all subsequent dates).
- In a case such as this one, it would be wise to specify that the waiver is for “now and all subsequent dates”.
- A foolproof record keeping system should be employed with backups of all records stored in another location.
Photo Credit: Thanks to Wolf 34 on Flickr.