By Doyice Cotten

While we know that liability waivers are vital tools in the risk management process, we sometimes forget that waivers do not work for all situations. For instance, we know that a waiver will not be enforced if it conflicts with statutory law. We also know that in most states waivers will not protect a provider from liability for gross negligence. And we know that in many states, waivers signed by parents on behalf of minor children will not protect.

The purpose of this article is to point out another failing of waivers that we sometimes forget – the fact that in many or most states waivers will not protect when there is negligence per se. A Florida case (Knarr v. Chapman School of Seamanship, 2000 U.S. Dist. LEXIS 5351) helps to remind us of this.

In Knarr, a woman enrolled in the seamanship school and subsequently slipped and fell while descending a ladder. She alleged that the ladder did not meet code. She had signed a waiver by which she agreed to “release and indemnify said Chapman School of Seamanship … from any suit or claim arising out of the use of any equipment, motors or vessels, whether or not such … injury … is based on the sole negligence of Chapman School of Seamanship.”

The court determined that the defendant violated a safety standard and was negligent per se under Florida law. It explained that the Supreme Court of Florida has established that negligence per se is a violation of any statute which establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury. Florida courts have also ruled that violations of other legal pronouncements, other than statutes, amount to negligence per se (e.g., violation of state administrative regulations, violation of FAA regulations, violation of Interstate Commerce Commission regulations).

So while waivers offer considerable protection to service providers, it is important to remember that waivers do not work in all situations.