LOST WAIVERS: What Happens If You Can’t Produce a Signed Waiver?
By Doyice Cotten
A recreation or sport provider is only half way home when they require that a client sign a liability waiver. The other half is being able to produce that waiver a year or two later when the lawsuit comes to trial.
Lost or missing waivers can be costly to the service provider. In a New York case (Schaeffer v. Wenk, 2001) involving a health club, no waiver was found and summary judgment failed. In a Georgia speedway case (Seibers v. Dixie Speedway, Inc., 1996), the defendant speedway produced five waivers signed by the plaintiff, but none for the date in question. They were not upheld. A stable (Millan v. Brown, 2002) was unable to produce a waiver signed by a plaintiff injured while horseback riding. The court said that the waiver would have been valid had one been found. In a tanning bed case (Oliver v. Tanning Bed, Inc., 2008), the operator was unable to produce a signed waiver. This created an issue of whether the client was adequately warned of the danger and resulted in the court denying summary judgment. In Idaho (Davis v. Sun Valley Ski Education Foundation, Inc., 1997), a ski operator was not allowed to present an unexecuted waiver as evidence in place of a destroyed waiver.
However, courts do enforce missing waivers under certain circumstances. When the defendant can show that they have a no exception rule, courts will often enforce the waiver although no signed copy can be produced. In a 2005 Connecticut case (Corso v. United States Surgical Corporation, 2005), the court enforced a waiver in spite of the fact that the defendant fitness center could not produce a signed waiver. The defendant established that all members were required to read and sign a waiver prior to using the center and that no exceptions were made to the rule. The court stated that Connecticut law has long recognized that a party may use secondary evidence to establish the existence of a document that no longer exists.
Missing waives are also enforced under other circumstances. In a Washington ski case (Lunt v. Mount Spokane Skiing Corporation, 1991), the court enforced a missing waiver stating that when an original document is lost and a diligent search is made, secondary evidence of its content may be admissible provided there is no bad faith. A waiver destroyed by fire was enforced when evidence indicated one had been signed (Daddario v. Snow Valley, Inc., 1995). In another case of a lost waiver (Nishi v. Mount Snow, LTD., 1996), the court enforced the waiver because the application form stated that a waiver was required. In a Minnesota case (Moore v. Minnesota Baseball Instructional School, 2009), the defendant could not produce the signed release or the online enrollment form, but the court upheld the waiver because no one is allowed to participate until the release is signed.
Risk Management Takeaway
Waivers can be worth their weight in gold; they are worth protecting and keeping track of. Take as much care storing waivers as you take protecting purchase contracts, warranties, maintenance contracts, and deeds. Sometimes a missing waiver is enforced, but you are much safer if you are able to produce it.
Develop a dependable storage system.