By Doyice Cotten
Most everyone occasionally is required to sign a waiver in order to participate in some activity. Most waivers are intended to prohibit plaintiff recovery in the event the plaintiff is injured due to the NEGLIGENCE of the provider of the activity. Some signers realize this, some assume they are waiving recovery for injuries due to “accidents.” Still others have no idea because they do not read what they sign; they only know they have to sign a paper in order to participate. Most, however, probably feel the waiver is legal and would be enforced.
Actually, there are many factors that go into the determination as to the enforceability of the waiver. In this post, I want to look at the language in a waiver I signed at a Mexican resort and determine what it actually covers. The pertinent parts of the waiver read:
Delineation of Responsibility (Waiver)
This … must be read, filled out and signed before swimming in the hotel mangrove. In the case of minors, a parent or guardian must sign.
Being fully aware of the risks that may occur during the activity, I declare that:
• I accept the possible risks related to this activity, and I am aware of the legal consequences of signing this waiver. I also know, understand and accept all of the risks, responsibilities and consequences of participating in this activity, such as serious blows, earache, accidents, injury, muscle cramps, illness or death, and or any other situation during or after my participation in the activity.
• …no physical, psychological or illness-related problem …
• …no medication…
• I assume all responsibility for material and/or physical damages caused when participating in this activity, as well as full responsibility for causing any verbal and/or physical assault on others.
• I assume full responsibility for all possible risks that the activity implies.
• … to follow instructions … appropriate behavior…
• I release XXXX resort and its representatives … from all responsibility for any unforeseen situation, personal injury, accident, death, civil responsibility, material damage …and their consequences resulting from participation in this activity.
• If the hotel receives or is included in any lawsuit …, I agree to immediately … hold harmless and release from liability the hotel, covering all fees and expenses resulting….
• Considering all of the above, I confirm that I will not present any kind of complaint, lawsuit or indemnification resulting from participation in the activity … to the hotel.
I HAVE READ, HAVE UNDERSTOOD AND AGREE TO EVERYTHING STATED IN THIS WAIVER.
Is the Resort protected against liability for negligence?
It is difficult to say for sure. In America, it would depend upon the law of the particular state in which it occurs. If Mexican law is applied, who knows. But let’s look at some issues that might arise (shown above in red).
First, many states will enforce parental waivers; more will not. In Mexico, who knows.
Second, “Being fully aware of the risks” makes a huge assumption; would most people understand the risks of swimming in the mangroves? A few risks are listed. That might do, but might not. In some states, the risks must be more detailed.
Next, the signer’s acceptance of the “risks related to this activity” would seem to include only the inherent risks – not negligence. Signer’s assumption of all responsibility for all possible risks that the activity implies does not include negligence.
Once again, the language “release XXXX resort and its representatives … from all responsibility for any unforeseen situation, personal injury, accident …” does not seem to include negligence. However, a number of states might interpret “release … from all responsibility” to include negligence; many would not.
In the penultimate bullet point, the signer is agreeing to indemnify (to repay the resort for loss). This, too, is enforceable in some states, but could be better stated.
The final bullet point seems to be a covenant not to sue, which also is often enforceable.
The waiver at no point mentions or even strongly implies that it applies to negligence; it could be interpreted to apply only to the inherent risks of the activity. On the other hand, it does say “any kind of … lawsuit … resulting from participation in the activity” which might well be interpreted to include negligence.
In some states, the waiver would certainly be enforceable; in others, definitely not. There are several factors that would determine if the case would fall under U.S. law or Mexican law. The reader (and potential future signer) should keep in mind when encountering any waiver that it is a bad deal for the signer. Assume when signing such a document that it will be enforced – but probably half the waivers challenged in courts do not hold up for one reason or another.