By Doyice Cotten
Again and again I have written about the advisability of using the word “negligence” in your waiver. Actually, it is best to specify that the intent of the waiver is to relieve the provider of liability for the “negligence of the provider.”
Some waiver writers seem to be hesitant to use the actual word “negligence” – in fear, I suppose of, of scaring away patrons. In some states, of course, the word “negligence” is not required by the courts. Others specify that “negligence” or equivalent term is necessary. The use of the equivalent term is the problem I am addressing here.
In a Florida case (Hackett v. Grand Seas Resort Owner’s Association, 2012), a resort patron was sitting in a patio chair when it collapsed, causing him to be injured. Hackett filed suit and the resort claimed they were protected by exculpatory language in the guest license agreement. The agreement stated that the resort “will not be held responsible for accidents or injury to guest….”
The 5th District Appellate Court, which is the only district court in Florida that does not require the word “negligence” to be included in a waiver, addressed the term “accidents” in the exculpatory language and determined that “accident” and “negligence” are not equivalent. The court stated that while they still do not feel the term “negligence” is required, by doing so they do not sanction the use of “sloppy language or ambiguous language.” The court stated that “Negligence … is a basis for legal liability and denotes the violation of a duty to use reasonable care. An accident is not the same thing” and ruled in favor of the plaintiff.
In a Minnesota dressage case (Salinger v. Leatherdale, 2012), the appellate court overturned a ruling by the trial court that the plaintiff had put the defendant on notice of a greater-than-ordinary negligence claim. The appellate court ruled that the complaint by the plaintiff alleging the plaintiff sustained severe injuries “as a direct and proximate result of the negligence and carelessness [Emphasis added] of the” defendant did not put respondents on notice of a claim for greater-than-ordinary negligence. Interestingly, the court also ruled that the pleading error was harmless. The case does, however, emphasize the importance of exact language whether in waivers or in complaints.
Regardless of Whether your state requires the presence of the word “negligence” to be in the waiver, its use ALWAYS reduces the likelihood of ambiguity in the waiver; ambiguity is the single most prevalent cause of waiver failure!