By Doyice Cotten
Most, or at least many, sport, fitness, and recreation businesses rely upon liability waivers to protect the business from liability for injury in the event of provider negligence. One occasionally hears that waivers are not worth the paper they are written on. Not so . . . at least, not in most states. But one must be aware that whether waivers are enforceable depends up State Law.
The fact is that in most states, a well-written waiver willingly signed by adult participants will probably be enforced to protect the business. But as stated in the title of this post, liability waivers have limitations, and one of those limitations are statutes enacted by State Legislatures. Discussed below are four types of statutes that may result in a waiver’s failure to protect the business from liability. NOTE: the examples given below are just that – examples, and are not intended to be all of said statutes. Actually, there are many statutes covering a number of sports or recreational activities.
Statutory Enactment Prohibiting Waivers
Two states have state statutes that prohibit the enforcement of liability waivers in virtually all situations, whether sport, fitness, or recreation – or in other business endeavors.
La Civ Code Ann art 2004 states that “Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.”
Mont Code Ann § 28-2-702 states that “All contracts that have for their object, directly or indirectly, to exempt anyone from responsibility . . . for violation of law, whether willful or negligent, are against the policy of the law.”
See also that the court in Miller v. Fallon County, 222 Mont 214, 221, 721 P2d 342 (1986) stated “under statute, prospective release from liability for negligence is against the policy of the law and illegal, despite being a private contract between two persons without significant public implications.”
Statutory Enactment Regarding Recreational Activities for the Public
Two states have very broad waiver-prohibiting statutes that restrict the use of sport-, fitness-, and recreation-related waivers.
NY Gen Oblig Law § 5-326 provides that
Every covenant, agreement or understanding in or in conndection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.
To be sure, this statute does not prevent all waivers in New York State, but does limit their usefulness when there is an admission charge paid to the operator of a place of amusement or recreation.
Haw Rev Stat § 663-1.54(a) states that “Any person who owns or operates a business providing recreational activities to the public … shall be liable for damages resulting from negligent acts or omissions of the person which cause injury.” The statute does allow waivers of liability for the inherent risks of the activity.
Statutes Regarding Specific Recreational Activities
Other states have enacted statutes that specifically prohibit providers of one specific sport or activity from acquiring protection from their own negligence by use of a waiver.
Alaska Stat Ann § 05.45.120 specifically prohibits ski area operators from requiring skiers to enter into agreements releasing them from liability in exchange for the use of the facilities.
Statutes Specifying Duties of Ordinary Care by Providers or Operators
Some states specify that providers or operators have a statutory duty to provide ordinary care – a statutory duty that cannot be defeated by a liability waiver.
NC Gen Stat § 99C-2(c)(7); NC Gen Statute § 99C-3 is a statute which imposes a duty on ski area operators “[n]ot to engage willfully or negligently in any type of conduct that contributes to or causes injury to another person or his properties. (violation of duties of ski area operator that causes injury or damage shall constitute negligence).”
See also Strawbridge v. Sugar Mountain Resort, Inc., 320 F Supp 2d 425, 433 (WD NC 2004). The court, in light of the statutory duty imposed on ski area operators not to negligently engage in conduct that causes injury, did not enforce the waiver on back of lift ticket.
Colo Rev Stat § 33-44-104(1) prescribes ski area operator duties and provides that operators will be liable for a violation of those duties.
See also Anderson v. Vail Corp., 251 P3d 1125, 1129-30 (Colo App 2010) in which the court held that a negligent ski area operator violated statutory duties; the exculpatory agreement would not release operator from liability.
Idaho Code § 6-1107 states that “Any ski area operator shall be liable for loss or damages caused by its failure to follow the duties set forth in [other sections of the Idaho Code pertaining to duties of ski area operators], where the violation of duty is causally related to the loss or damage suffered.”
ND Cent Code § 53-09-07 basically says that a ski operator is liable for damages when the injury was causally related to a violation of a duty (negligence).
W Va Code § 20. Art. 3B (1-5) states that commercial whitewater outfitters and guide must conform to the standard of care expected of members of their profession – ordinary care.
The potential waiver user should not be discouraged by this. Most states do not forbid waivers by statute; further, most such statutes apply to only one sport. But, the take-away for the reader is that he or she should become informed regarding statutes that might apply to his or her sport, recreation, or fitness business.