Interpreting a Waiver: Can you do it?

By Doyice Cotten

The Waiver

3251366809_70181f4b00_z“I understand that there are inherent and other risks involved in the sport for which this equipment is to be used and that injuries are a common and ordinary occurrence of the sport, and I freely assume those risks.” The release also states that the signer “hereby release[s] the Inn and its owners, agents and employees from any and all liability for damage to [the signer] . . . resulting from negligence: installation, maintenance, the selection, adjustment and use of the equipment, accepting myself the full responsibility for any and all such damage or injury which may result.” (Serna v. Lafayette Nordic Village, Inc., 2015 U.S. Dist. LEXIS 92669)

The Situtation

Adriana Serna signed a liability waiver and went skating at Nestlenook Farm and Resort (“Nestlenook”) in New Hampshire where she was injured when she fell while walking in her skates to the warming gazebo. Adriana and her husband alleged that the defendants were negligent in maintaining the path and failing to warn of dangers as well as negligent in training and supervising the staff at Nestlenook. The defendants move for summary judgment on the grounds that the release Adriana signed bars her claims.

Nestlenook provided a warming gazebo near the skating pond where renters changed into and out of their skates. The route between the gazebo and the pond consisted of a six-foot portion covered by rubber mats followed by a set of stairs.

The skate rental form included a waiver on the reverse side. After skating, Adriana walked from the pond up the stairs to the path leading to the warming gazebo. When she stepped onto an icy rubber mat placed on the path, she slipped and fell.

The plaintiffs argue that the release does not bar their negligence claims.

New Hampshire Law

The New Hampshire Supreme Court has ruled that waivers are enforceable provided they (1) do not violate public policy; (2) the plaintiff understood the import of the agreement or a reasonable person in his position would have understood the import of the agreement; and (3) the plaintiff’s claims were within the contemplation of the parties when they executed the contract. The court ruled the agreement was not against public policy because skating is not an activity “of such great importance or necessity to the public that it creates a special relationship.”


The plaintiff claimed that Adriana did not have a chance to read the release because the Nestlenook employee “appeared to be in a hurry” but the court stated that failure to read a waiver does not preclude enforcement of the waiver. The plaintiff claimed that neither Adriana nor a reasonable person in her position would have understood that the rental form included a waiver because she was not given an opportunity to read it and because the waiver did not state that it applies to Nestlenooks’ negligence in constructing and maintaining the premises and in training and supervising its staff.

So, the question is “Does the waiver protect the provider from liability 1) for negligent actions by the provider and 2) from liability during the walk to the warming area?”

All Depends on the Wording & Scope of the Written Waiver

So, before reading further,  the reader should now carefully re-read the waiver in the first paragraph of the post. Read carefully and see what the language of the waiver tells you! How do you think the court will rule?


 The court stated:

  • To be enforceable, a release must “‘clearly and specifically indicate the intent to release the defendant from liability for personal injury caused by the defendant’s negligence.”
  • The language used is given “its common meaning” and the agreement is given “the meaning that would be attached to it by a reasonable person.”
  • Taken in the context of the entire release form and the rental agreement, the provision in which the renter assumes responsibility for inherent risks is reasonably interpreted to mean risks inherent in the sport of skating.
  • The provision that releases liability for negligence is limited to negligence for the specific actions listed.
  • As such, that provision is reasonably interpreted to pertain to the liability for negligence in providing the rented equipment, that is the ice skates.
  • When Adriana fell, but she was walking to the gazebo, not skating on the pond.
  • The plaintiffs allege that the defendants were negligent in constructing and maintaining the rubber mat portion of the path, in failing to protect their patrons and to warn of dangers on the path, and in training and supervising their employees to properly maintain the path. Although the plaintiffs appear to criticize the skates provided to Adriana in the fact portion of their complaint, their claims do not allege negligence in providing the skates or in maintaining the skating pond. Therefore, the defendants have not shown that the release bars the plaintiffs’ claims. SO, SUMMARY JUDGMENT WAS DENIED; THE WAIVER DID NOT PROTECT. The court felt that the entire waiver applied to the activity of skating, not including walking to the warming area.

Risk Management Take-away

  • Providers should take the time to carefully read their waiver and examine what it actually says; but, at the same time, it is important to realize that most providers do not have the knowledge to adequately analyze legal documents.
  • Hire an expert to write your waiver. Much depends upon it. You do not want to end up where Lafayette Nordic Village did – unprotected.

 Photo Credit: Thanks to Laura Bittner on Flickr.