By Doyice Cotten

A lady was injured while parasailing on Lake Tahoe and sued alleging negligence by the provider (Cobb v. Aramark Sports and Entertainment Services, LLC, 2013 U.S. Dist. LEXIS 20139).  Prior to beginning the activity, she signed the following liability waiver intended to protect the provider from liability for injuries caused by provider negligence.

In consideration of my being allowed to participate in the parasailing  [*2] activities operated and conducted by [Zephyr], I hereby RELEASE and WAIVE . . . any and all claims that I may have . . . against [Zephyr], and any of [its] affiliates . . . I specifically RELEASE [Zephyr], and any of [its] affiliates . . . from . . . all claims for . . . injury or death to persons caused by negligence of any one of them arising out of my participation in the parasailing activities. I AGREE NOT TO SUE . . . the aforementioned parties for any injuries or damages that I might hereby receive from my participation in the parasailing activities, whether or not such injury, loss or damage results from the aforementioned parties’ negligence or from any other cause.[Bold added.]

Admiralty Law and Waivers

The first issue to be decided was the governing law for this waiver – California state law, Nevada state law, or federal admiralty law. The court declared that admiralty law (also called maritime law) applied because the two determining factors for admiralty jurisdiction are met: 1) there is a navigable body of water between two states that is capable of supporting maritime commerce, and 2) the operation of recreational boats, including pulling skiers or wakeboarders, bears a significant relationship to traditional maritime activity.

The court held that assumption of risk is not an available defense in maritime cases; however, it said that an express waiver defense is available as an affirmative defense. The court stated that under admiralty law, owners of recreational vessels may disclaim liability for their own negligence through the use of written waivers. Such waivers must be deemed 1) clear and unambiguous, 2) not inconsistent with public policy, and 3) to not be an adhesion contract.

First, the court held that the waiver was clear and unambiguous because it specifically bars the plaintiff’s negligence claim and explicitly exonerates all defendants (see bold language in the waiver above). Second, the court stated that waivers of liability on navigable waters do not violate public policy. Third, the court held that the waiver was not an adhesion contract because recreational sporting activities, like parasailing, are not essential services.

So…

As can be seen in this case, the applicable law is not always state law when waterways are involved. Similar rulings have occurred in water skiing and Jet Ski cases.

Photo Credit:   Thanks to Loren Sztajer at  http://www.flickr.com/photos/lorensztajer/4303481409/

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