Waivers and releases of liability can fail to protect for many reasons. Releases in three 2009 cases failed to protect because the waiver did not name the protected parties either by name or by function. These three cases can give sport, recreation, and fitness providers some guidance in writing a waiver or in evaluating a waiver currently in use.
Porter v. Dartmouth College
In Porter v. Dartmouth College (2009 U.S. Dist. LEXIS 90516), Christina Porter died from injuries suffered when she skied off the trail on her way down the slope during a physical education skiing class. The waiver was an equipment rental agreement, required of all skiers who rent equipment, containing a waiver of liability.
Pertinent language in the waiver is:
“I AGREE TO RELEASE AND HOLD HARMLESS the equipment rental facility, its employees, affiliates, agents, officers, directors, and the equipment manufacturers and distributors and their successors in interest (collectively “PROVIDERS”), from all liability for injury, death, property loss and damage which results from the equipment user’s participation in the RECREATIONAL SNOW SPORTS for which the equipment is provided, or which is related in any way to the use of this equipment, including all liability which results from NEGLIGENCE of PROVIDERS, or any other person or cause.”
While Dartmouth asserted that Dartmouth was the only entity involved in the rental transaction, the court stated, “I cannot conclude that a reasonable person in Porter’s position would have understood that Dartmouth, rather than some other entity with which Dartmouth had contracted, was the equipment rental facility.” New Hampshire law requires that a waiver clearly identify the specific parties being released as well as the types of claims the agreement covers.
Furthermore, the court found that the waiver failed to relieve Dartmouth of liability for the consequences of it ski instructors’ negligence. While the waiver attempts to relieve providers from all liability for injury resulting from the user’s participation, it fails to provide release from liability for negligent ski instruction. Nothing in the waiver relates to “instruction,” “lesson,” or “physical education.” Therefore, the waiver fails to clearly state that Dartmouth is released from liability for negligence claims arising from the ski class.
Kolosnitsyn v. Crystal Mountain, Inc.
This case, Kolosnitsyn v. Crystal Mountain, Inc. (2009 U.S. Dist. LEXIS 79111), was similar to the Porter case. In this case, the plaintiff was seriously injured while skiing in the state of Washington. Once again, the waiver was included in an “Equipment Rental & Liability Release Agreement” which was signed by all skiers renting equipment. It was virtually the same as the Dartmouth College waiver:
“I AGREE TO RELEASE, whether in the present or in the future, to the fullest extent allowed by law, the ski/snowboarding shop, its employees, owners, affiliates, agents, officers, directors, and the manufacturers and distributors [*5] of this equipment (collectively “PROVIDERS”), from all liability for injury, death, property loss and damage which results from the equipment user’s participation in the sport of skiing/snowboarding/SnowBlade use, or is in any way related to the use of this equipment, including all liability which resulted from the NEGLIGENCE or BREACH OF CONTRACT of PROVIDERS, or any other person or cause.”
Waivers in Washington are enforceable unless 1) they violate public policy, 2) are inconspicuous, or 3) the negligence falls below standards established by law. The question here related to whether the waiver was inconspicuous. To be considered conspicuous, a waiver must be 1) clearly displayed and 2) its meaning must be clear and unambiguous. The court found that the waiver met the first requirement and was conspicuously displayed because 1) it was set apart from other information, 2) it had a clear heading, 3) it was set off in capital letters or bold type, 4) its signature line was below the waiver provision, 5) language above the signature line was clear, and 6) it was clear the signature related to the waiver.
The court, however, found that the waiver failed the second requirement of conspicuousness because the language of the waiver was unclear as to whether it releases Crystal Mountain from liability regarding the services provided by the shop. The court found an issue of material fact as to whether the term “PROVIDERS,” or “owners” would be objectively or conspicuously interpreted to include the ski resort itself. Thus, failure to clearly name Crystal Mountain in the waiver was a significant factor in the failure of the waiver to protect.
While Crystal Mountain, Inc. owned the ski shop, other resorts in the area did not own their rental facilities (contracting them to private companies). Thus it might not be clear to the signer whether the waiver related to rentals and lessons, or whether it encompassed the use of the ski area itself. Users who did not rent equipment signed no waiver. The court commented that it “would be fundamentally unfair and nonsensical to hold Crystal Mountain to a higher duty of care for skiers who bring their own equipment than for those who rent equipment from the mountain shop.”
McWilliams v. S.E.Inc.
The McWilliams case (2009 U.S. Dist. LEXIS 100376) involved a woman who died as a result of falling out of her parachute harness during decent. Plaintiff alleged defective equipment design of and negligent adjustment of the parachute harness and filed suit against the equipment manufacturer (S.E. Inc.), the sky diving company, and its employee. McWilliams had signed a waiver prior to the jump that named the sky diving company and its employees. S.E. Inc. claimed protection based on that waiver, however the court did not allow it because S.E. Inc. was not included among the protected parties by name or by function. The Ohio court stated there was no bargained for benefit that flowed from S.E.Inc. to McWilliams.
The lessons learned from these cases can be applied to most sport, recreation and fitness providers. For instance, it is easy to foresee riding stables, boat rentals, country clubs and others experiencing similar challenges to their waivers. Readers can draw several guidelines from these cases. 1) Clearly name, either by name or by function, all parties that you intend to protect. 2) Require waivers of all participants. Maintain a no-exception policy. 3) Make your waiver broad enough to include all of the aspects of your business. 4) Consider naming your equipment manufacturers as protected parties.
Photo Credit: David Boyle at http://www.flickr.com/photos/beglen/182947751/sizes/m/
Search word: Adventure Sports