Failing Waiver Language: Too Broad and Too Narrow

By Doyice Cotten

Waivers may fail for a number of reasons. Over the last several years it seems that there is a rash of failures because the waiver was 1) too narrowly constructed, 2), overly broad or 3) did not specifically name a party seeking protection. Seldom, however, does a waiver fail for all 3 deficiencies – as is the case in this instance.

In Fisher v. Stevens (2003 S.C. App. LEXIS 109), Stevens (the wrecker driver) was responding to an accident on the race track. Fisher, an employee, fell from the wrecker and was injured (and later died). Fisher’s estate sued Stevens and Poindexter (the owner of the wrecker).

Prior to the accident, Fisher had signed a waiver which gave protection to “vehicle owner,” “driver,” and “any persons in any restricted area.” Defendants claim protection because one was a driver and the other the owner of the wrecker. The court ruled, however, that the language (vehicle owner and driver) referred to in the waiver was intended to apply to race car drivers and owners. The court said the provision could not be construed to exempt defendants “in the absence of explicit language clearly indicating that such was the intent of the parties.” The waiver could have included language such as “owners and drivers of all vehicles authorized to be on the track.” Failure reason number 1 – Language too narrow.

The court then examined the phrase “any persons in any restricted area” and ruled that the language was very broad – so much so that it protected even parties who were not authorized to be in the area. As a result, they held that the language was too broad to be enforceable and was void as against public policy – as is such language in a number of states.  Failure reason number 2 – Language too broad.

This case illustrates the need to take care to determine and name all parties that the waiver is intended to protect. It would have been a simple matter to have included the wrecker owner and driver as protected parties. Failure reason number 3 – Language did not specifically name defendant as a protected party.

So, are you confused yet? Reread your waiver and see who is protected by it.

Photo Credit: Thanks to aldenjewell’s photostream at     http://www.flickr.com/photos/autohistorian/4403441270/sizes/m/in/photostream/