By Rick Conner

Part 1 of 3

Rick Conner is an attorney with McGuireWoods in Charlotte, N.C. This is an excellent summary of North Carolina waiver law, originally published in 2008. Thanks to Rick for granting permission for this reprinting. Parts 2 and 3 will appear over the next two weeks. DC

Imagine this – you have front row seats to watch the Charlotte Bobcats play the Phoenix Suns. You have an unbeatable view of the action – so close that you are able to strike up a conversation with Gerald Wallace during warm-ups. The arena staff brings the food and beverage of your choice right to your courtside seat. Things can’t get much better, until Shaquille O’Neal comes hurtling at you while chasing a loose ball. As Shaq pulls his 325-pound frame off of your flattened, beer-soaked body, you notice the waiver language on the back of your ticket and wonder – is that enforceable?

Most sports and recreational activities are accompanied by an inherent level of risk for participants, and sometimes for observers as well. Whether you are playing recreational league football with your buddies, carving turns down a snow-packed mountain, or sit-ting along the first base line at a minor league baseball game, there is often some risk that you may suffer an injury.

Where there is risk of injury, there is also the risk of a lawsuit by the injured person against participants, facility owners, or event organizers and promoters. Courts are often left with the difficult task of determining when the dangers that led to the injury exceed those which are normally accepted in the particular sport and rise to the level of actionable negligence. 1

Owners, organizers, and promoters of sporting events and recreational activities often try to minimize their risk of liability for injuries to participants and observers through releases, waivers, and warnings. This article examines the circumstances under which courts, applying North Carolina law, have enforced liability releases and waivers in connection with sporting events and activities, and provides some practical suggestions to help you ensure that these releases and waivers will be upheld.

 What’s Up With the Small Print on the Back of my Lift Ticket?

Liability releases and waivers are being incorporated more and more often in a variety of settings and document types. For example, it is common to find releases and waivers:

 On the back of tickets to sporting events, or on lift tickets at ski slopes;

 Included in rental agreements for equipment such as snow skis, jet skis, or surf-boards;

 Included in employment agreements for certain employees;

 In agreements signed prior to participation in guided excursions such as white water rafting, rock climbing, parasailing or skydiving;

 Executed by competitors in an automobile race or sports league;

 Included in documents signed by sports fans as a condition of being given special access at sports facilities, such as pit passes at race tracks or sideline passes at football games.

 In some circumstances, these releases and waivers can help owners and operators of sports facilities and excursions avoid liability for damages when participants or fans are injured.

Are Liability Releases and Waivers Enforceable in North Carolina?

Under North Carolina law, “a person may effectively bargain against liability for harm caused by his ordinary negligence in the performance of a legal duty.” 2

Although North Carolina courts will strictly construe con-tracts that attempt to relieve a party of liability for damages caused by negligence,3 courts will enforce such agreements unless they are “violative of a statute, gained through inequality of bargaining power, or contrary to a substantial public interest.” 4

Releases are contractual in nature and their interpretation is governed by the same rules governing the interpretation of contracts. A release that is supported by consideration can operate to protect specifically named parties, and may also validly extend to “all other persons or entities” as well. 6

A release is binding unless procured by fraud, duress, or oppression, or based on a mutual mistake. 8

North Carolina courts have not specifically ruled on whether a release or waiver may bar a claim for gross negligence or willful or wanton conduct. 9 However, courts in other jurisdictions have generally held that prior releases of claims for gross negligence or willful or wanton conduct are void because they violate public policy. 10

The release defense is an affirmative defense which must be specially pled, and on which the defendants have the burden of proof. 11 Where a plaintiff seeking recovery for personal injuries admits the execution of a release, the plaintiff has the burden to prove any matter in avoidance. 12

End Notes

1. The focus of this article is on releases  and waivers in connection with dangers relating to the actual sporting activities. It does not cover other potential liabilities that host facilities and enterprises may face, such as premises liability or dram shop liability.

2.  Strawbridge v. Sugar Mountain Resort, Inc. 320 F. Supp.2d 425, 432 (W.D.N.C. 2004) (quoting Hall v. Sinclair Refining Co. 242 N.C. 707, 709, 89 S.E.2d 396, 397 (1955)).

3.  Id.

4.  Id. (quoting Waggoner v. Nags Head Water Sports No. 97-1394, 1998 WL 163811, *7 (4th Cir. April 6, 1998))

5.  Chemimetals Processing, Inc. v. Schrimsher 40 N.C. App. 135, 138, 535 S.E.2d 594, 596 (2004).

6.  Best v. Ford Motor Co. 148 N.C. App. 42, 45, 557 S.E.2d 163, 165 (2001).

7.  Pass v. McClaren Rubber Co. , 198  N.C. 123, 150 S.E.2d 709, 711 (1929).

8.  Van Keuren v. Little , 165 N.C. App. 244, 247, 598 S.E.2d 168, 170 (2004).

9.  See, e.g., Bertotti v. Charlotte Motor Speedway, Inc., 893 F. Supp. 565, 569 (W.D.N.C. 1995) (noting that North Carolina courts have not addressed the issue and declining to do so, since plaintiff did not introduce evidence sufficient to establish gross negligence).

10. See Waggoner, 1998 WL 163811 at *4 (noting that courts have generally held that public policy forbids waiver of a claim for gross negligence); Walter T. Champion, Jr., Fundamentals of Sports Law § 8:3 (2007).

11. Alston v. Monk , 92 N.C. App. 59. 63, 373 S.E.2d 463, 466 (1988).

12. Caudill v. Chatham Mfg. Co. , 258 N.C. 99, 102, 128 S.E.2d 128, 130 (1962).

Photo Credit: Thanks to Taber Andrew Bain on Flickr.