Good Waivers Fail; Bad Waivers Protect — SOMETIMES

By Doyice Cotten

In Waivers & Releases of Liability (7th ed.), this author devotes two entire chapters (More than 50 pages) to how to write an effective waiver. One can construct a great waiver by following the guidelines presented. However, waivers don’t always work as expected. In case law we find that some very poor waivers successfully protect the provider, and we find that on occasion, very good waivers fail to protect for one reason or another. In this article, we will look at two examples of this phenomenum.

In Brown v. Northwoods Animal Shelter (2011 Mich. App. LEXIS 1912), a volunteer worker was injured in a slip and fall accident while at the shelter. She had signed the following waiver when she began volunteering her services:

I, Patricia T. Brown, hereby agree to hold Northwoods Animal Shelter harmless and I agree that the Northwoods Animal Shelter shall not in any circumstance be responsible for any loss or damage to my property or any injury to myself which may occur, while I am volunteering at the Northwoods Animal Shelter, located at 1501 Mineral Avenue, Iron River, Michigan.

I am serving as a volunteer and I understand I may be working with animals which are unpredictable and dangerous. I am also well aware  [*2] of the other possible risks in terms of personal injury and or property damage that I will be exposing myself to as a volunteer as a volunteer [sic] for the Northwoods Animal Shelter. I know and fully understand that I will not be able to claim any compensation against the Northwoods Animal Shelter for lost wages or any other losses or damages caused by anything that happens while I am volunteering for Northwoods Animal Shelter.

After reading the waiver, the reader might have noticed some weaknesses present in the waiver. For instance, at no point in the waiver does it suggest that the signer is releasing the Shelter from liability for its negligence. In fact, when you read the second paragraph, it refers to working with unpredictable and dangerous animals and mentions other possible risks she will be exposing herself to. Both sound like inherent risks – not negligence of the provider. In many states, a waiver such as this one would not be enforced because it is not clear that the signer intends to release the provider from liability from injury resulting from the negligence of the provider. Compare this waiver with the next waiver!

In Haire v. Parker (2011 Ind. App. LEXIS 1845), Haire was injured while in the NON-PUBLIC AREA  of the racetrack. The injury occurred while he and others tried to move an ATV when it started suddenly, ran up an embankment, and fell back on Haire. He had signed the following waiver when he entered the track:

RELEASE AND WAIVER OF LIABILITY, ASSUMPTION
OF RISK AND INDEMNITY AGREEMENT

To some extent all motor vehicles are potentially dangerous. The participants should take part in motor vehicle events based on their own abilities. Regardless of state law, Haspin Acres strongly urges the participant to wear a helmet and other appropriate safety apparel. Haspin also urges participants to receive professional instruction before operating any motor vehicle.

Haspin does not provide medical insurance. We urge all participants not to operate their vehicle without personal medical coverage.

Any participant who: prior to starting an event doubts their ability to participate in an event, feels they have not adequately prepared themselves and their equipment, questions the safety or condition of the facility, believes their personal insurance coverages are not adequate to cover them for any loss that might occur; are urged to notify the management who will immediately refund their entry fee.

In consideration of permission to enter for any purpose the NON-PUBLIC AREA (defined as any area to which admission is not open to the general public, including but not limited to pit areas, judging areas, special promotion areas, racing surfaces, walkways, official’s and participants’ areas, etc.) of the above location, and/or in further consideration of permission to observe and/or participate in the above described meet in any capacity whatsoever, I hereby understand and agree as follows:

1. I RELEASE, DISCHARGE AND AGREE NOT TO SUE THE HASPIN ACRES MOTORPARK, its officers, trustees, employees and agents, meet officials, promoters, sponsors, motorcycle owners, riders, mechanics and pit crew [bold added], and owners and lessees of premises used in connection with the meet, and each of their respective employees and agents, from all claims, demands, actions, causes of action, liability loss or injury (including death) of whatsoever kind, nature or description that may arise to my person and property, in any way resulting from or arising in connection with the above-described meet while I am in the NON-PUBLIC AREA.

2. I ASSUME FULL RESPONSIBILITY FOR AND THE RISK OF loss, damage or injury (including death) of whatsoever kind, nature or description that may arise to my person and property notwithstanding any negligence [bold added] of the HASPIN ACRES REC PARK, its officers, trustees, employees and agents, meet officials, promoters, sponsors, motorcycle owners, riders, mechanics and pit crew [bold added], and owners and lessees of premises used in connection with the meet, and each of their respective employees and agents, while I am for any reason in the NON-PUBLIC AREA voluntarily and upon reliance of my own judgment and ability and knowledge of the risks and hazards to myself and property while entering, upon departing such area.

3. I INDEMNIFY AND HOLD HARMLESS the HASPIN ACRES REC PARK, its officers, trustees, employees, and agents, meet officials, promoters, sponsors, motorcycle owners, riders mechanics and pit crew [bold added], and owners and lessees of premises used in connection with the damage, or cost each of them may incur due to my presence in the above-described NON-PUBLIC AREA.

4. THIS RELEASE, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT SHALL BE BINDING UPON my heirs, administrators, executors and assigns.

If any portion of this RELEASE ASSUMPTION of RISK AND INDEMNITY AGREEMENT is held invalid, the balance shall notwithstanding continue in full legal force and effect.

I HAVE READ AND VOLUNTARILY SIGN THIS RELEASE, ASSUMPTION OR RISK AND INDEMNITY AGREEMENT, AND I certify that no oral representation statements or inducements apart from the foregoing written agreement have been made.

Obviously, this waiver is longer. However, it is important to note what is present here and missing in the first waiver. Some of these are:  the release of liability in #1, release of many named parties in #1, release of negligence of the provider [bold added] in #2, indemnification of providers in #3, release on behalf of heirs in #4, a severability clause, and a statement acknowledging having read and voluntarily signing the document.

It is readily apparent that the second waiver provides more protection for the provider and other parties (including riders). However, when it comes to waivers, nothing is a sure thing. The first waiver, in spite of its inadequacies, was enforced by the Michigan court. It is worth noting that in Waivers & Releases of Liability, Michigan has been classified as a Lenient State (one in which courts are more likely to uphold a challenged waiver).

The second waiver, surprisingly, failed to protect because the court found issue with the highlighted phrase naming the protected parties. The defendant claimed to be a “rider” even though he was not riding an ATV at the time of the incident. The court sent the case to trial for the jury to determine whether the intent of the parties was to protect in the case of a rider while not riding. A second factor in this case is the fact that Indiana is classified as a Strict State (one in which courts are less likely to uphold a challenged waiver).

The reader should take away two risk management guidelines: 1) Don’t depend solely on a waiver. Couple the waiver with insurance and a good risk management plan. 2) Always use as good a waiver as possible, written specifically for your sport or recreation business.

Photo Credit: Thanks to Trailsource.com’s Photostream at http://www.flickr.com/photos/trailsource/