How Broad Should Your Waiver Be?

By Doyice Cotten

404219589_eebc16fcb8_zCan a waiver fail to protect the service provider because it is too broad in scope?  YES.  Can a waiver fail to protect the service provider because it is not broad enough in scope?  YES. Where does the provider or the waiver writer go from here? One might answer “Make it as broad as you can without making it too broad . . . but, be sure you cover everything.” That doesn’t help much, does it?

The answer lies in part in the fact that waiver law varies from state to state. Courts in some states feel that very broad waivers are against public policy and are unenforceable. Courts in most states, however, do not seem to be overly concerned about the breadth of the waiver; in fact, I find more waivers that fail for being too narrow in their scope than from being too broad.

In Cunningham v. Jackson Hole Mountain Resort Corporation (2016), the plaintiff, Cunningham, had signed this waiver prior to participation and suffering an injury:

I [the signor] further agree to forever release, discharge, waive, save and hold harmless, indemnify, and defend JHMR . . . from and against any and all claims, demands, causes of action, liabilities, actions, and any and all medical expenses or other related expenses, including damage to persons and property, asserted by others, by me, or on my behalf, my estate, executors, heirs, or assigns brought under any theory of legal liability, INCLUDING NEGLIGENCE, arising directly or indirectly out of my use of the facilities, ski area or ski lifts at JHMR, or my presence on JHMR premises.

This waiver broadens the scope of protection in seven ways (shown below in blue print). The opinion did not include a list of all parties protected by the waiver following JHMR. Listing parties protected also serves to broaden the protection.

I [the signor] further agree to forever release, discharge, waive, save and hold harmless, indemnify, and defend JHMR . . . from and against any and all claims, demands, causes of action, liabilities, actions, and any and all medical expenses or other related expenses, including damage to persons and property, asserted by others, by me, or on my behalf, my estate, executors, heirs, or assigns brought under any theory of legal liability, INCLUDING NEGLIGENCE, arising directly or indirectly out of my use of the facilities, ski area or ski lifts at JHMR, or my presence on JHMR premises.

That is just about as broad as you can make a waiver. It is attempting to cover as many risks faced by the resort as possible. This waiver was judged under Wyoming law by a U.S. Court of Appeals.

The plaintiff claimed the waiver was overly broad and ambiguous because “it relates to all ‘activities’ and all ‘facilities’ and all ‘premises’ on ‘each and every day’ against a wide array of entities and individuals.” [The court’s opinion did not include a list of all of the protected parties, which would also be in blue print.] Since the waiver includes broad language covering all facilities and activities at the resort at any time of year, the plaintiff alleged “[t]here is no way possible for a person to understand what this clause actually encompasses.”

The court responded that the waiver “explicitly limits JHMR’s liability for ‘any and all claims, demands, causes of action, liabilities, actions . . . arising directly or indirectly out of my use of the facilities, ski area or ski lifts at JHMR.’ Although this language is broad, there is nothing ambiguous about it.” It is apparent that Wyoming law, like the law in many or possibly most states, has no problem with broad language in a waiver.

Summary

It is the opinion of this author that the waiver should be sufficiently broad to cover the risks faced by the provider. The exception would be in states in which courts seem to disfavor broad waivers. It is not the purpose of this article to survey and report the status in all states, but three states that seem to disfavor broad waivers are Wisconsin, Connecticut, and Oregon.

 

Photo Credit: Thanks to Joe Shlabotnik on Flickr.