Oops, I Forgot to Administer the Waiver! What Happens Now?

By Doyice Cotten

181080368_016e6024cb_zLet me begin by saying this was an interesting and unusual case. It involves 20 year-old Megan Soucy, her mother, and her two minor sisters. It takes place on two days.

Day One – July 9

Megan and her family visit Nova Guides, Inc. and sign up for a Jeep tour. Intending to relieve Nova Guides from liability for injuries resulting from Nova negligence, Megan signs a waiver and her mother signs one on behalf of herself and her two minor daughters. They take the Jeep tour and enjoy it.

Day Two – July 11

Having enjoyed the Jeep tour, the family decides to take a Nova ATV tour. Soucy’s mother signs a waiver on behalf of herself and the two minor daughters. For some reason, Megan is not handed a waiver to sign.

The four proceeded to the ATV tour. While on the tour, Megan’s ATV overturned and she suffered injury. She subsequently filed suit alleging negligence on the part of Nova Guides (Soucy v. Nova Guides, Inc., 2015 U.S. Dist. LEXIS 95438).

During discovery, Nova moved for summary judgment arguing there were no triable issues because of the waiver. They submitted an unsigned waiver. Soucy argued that the only waiver she was asked to sign was the Jeep tour waiver on July 9.

The court stated that the question was not a matter of ambiguity in a formal written contract because no such contract existed. The question was whether an [oral] agreement between Soucy and Nova was formed on July 11. It added that in Colorado, an agreement can be express or implied. It said whether parties to an oral agreement become bound is a question of intent on their part; intent can be inferred from their actions and may be determined by their conduct prior to the time of controversy.

Soucy testified in her deposition that she knew waivers are typical prior to activities; that she had signed a waiver for the Jeep tour; that she would have signed a waiver had she been asked; and that she thought the Jeep tour waiver “carried over.” The defense held that it was obvious that she intended to be bound by a waiver.

The Conclusion of the Court

The court concluded that Megan paid for a service, received the service, and believed that the waiver on July 9 was in effect.

However, the court said that an agreement requires intent to be bound by both parties. It went on to state that Nova has proffered no evidence of its intention that Soucy be bound by an agreement to waive liability for the ATV tour on July 11. Nothing shows that Nova personnel asked Soucy to agree to a waiver, either by verbally asking her or by presenting her with a written agreement. Further, Nova presented no evidence to indicate its intent for a verbal agreement and, therefore, the court would not infer such an agreement.

It ruled that a genuine issue of fact exists as to whether an agreement was formed by both parties on July 11. Summary judgment on behalf of the defendant Nova Guides, Inc. was denied and the issue was sent to trial.

Risk Management Recommendations

1. Providers should institute a foolproof method of insuring that all participants have signed a waiver. When crowds are waiting and several people are in a group, things can get hectic – but must not be so hectic as to fail to obtain a signed waiver.
2. Providers should have a firm, no-exception policy. Everyone must sign a waiver. This type of policy has saved providers on occasion.
3. Finally, waivers can and usually should be written to have an extended duration. Language such as “… waive for now and on future visits …” could have saved the day for Nova.

Photo Credit: Thanks to Toublesource.com on Flickr.