By Doyice Cotten
Makenzie Wethington, sixteen years-old, wanted to learn to skydive (Wethington v. Swainson, 2015). She and her parents, went to Pegasus Airsport Center to learn how. She and her parents signed a waiver of liability as part of the registration process. She underwent an instruction course that included determining the condition of the parachute after deployment, gaining control and resolving any deployment problems and, if necessary, activating her emergency parachute.
After four hours of training and instruction, she was assigned a used parachute based on her size and weight. Defendant used an inexperienced man as radio controller, whose duty was to help guide the jumpers onto the landing area. It was his first time performing the task. During her jump, her chute malfunctioned, causing her to spin rapidly and hit the ground at a high speed and impact, causing her to sustain serious injuries.
Mckenzie alleged that the Defendant (1) provided inadequate training, (2) selected a person to provide radio assistance who had no prior experience, (3) provided old equipment that malfunctioned during Makenzie’s jump, and (4) permitted Makenzie to use a parachute that was inappropriate for her skill level.
The defendant claimed protection based on the waiver. Pertinent parts of the waiver follow:
1. RELEASE FROM LIABILITY. I hereby RELEASE AND DISCHARGE [Defendant] from any and all liability claims, demands or causes of action that I may hereafter have for injuries and damages arising out of my participation in parachuting and other aviation activities, including but not limited to LOSSES CAUSED BY THE NEGLIGENCE OR OTHER FAULT OF THE RELEASED PARTIES.
2. COVENANT NOT TO SUE. I further agree that I WILL NOT SUE OR MAKE A CLAIM AGAINST [Defendant] for damages or other losses sustained as a result of my participation in parachuting and other aviation activities.
5. ACKNOWLEDGMENT OF RISK. I understand and acknowledge that parachuting activities have inherent dangers that no amount of care, caution, instruction or [*4] expertise can eliminate and I EXPRESSLY AND VOLUNTARILY ACKNOWLEDGE ALL RISK OF DEATH OR PERSONAL INJURY SUSTAINED WHILE PARTICIPATING IN PARACHUTING AND OTHER AVIATION ACTIVITIES WHETHER OR NOT CAUSED BY THE NEGLIGENCE OR OTHER FAULT OF THE RELEASED PARTIES, including but not limited to equipment malfunction from whatever cause or inadequate training.
9. ENFORCEABILITY. I agree that if any portion of this Agreement, Release of Liability and Acknowledgment of risk is found to be unenforceable or against public policy, that only that portion shall fall and all other portions shall remain in full force and effect. . . . I also specifically waive any unenforceability or any public policy argument that I may make or that may be made on behalf of my estate or by anyone who would sue because of injury, damage or death as a result of my participation in parachuting and other aviation activities.
10. LEGAL RIGHTS. It has been explained to me, and I expressly recognize that this Agreement, Release of Liability and Acknowledgment of Risk is a contract pursuant to which I am giving up important legal rights, and it is my intention to do so.
Near the bottom of the form, Makenzie read and rewrote the following statement: “I hereby certify that I have read this Agreement, Release of Liability and Acknowledgment of Risk, that I fully understand the contents of this contract, that I wish to be bound by its terms, and that I have signed this contract of my own free will.” This was signed and dated by Mckenzie’s mother below the heading: “RATIFICATION BY PARENT/GUARDIAN if participant is under 18-years-of-age.” Both parents attested that they had read the agreement, understood its terms, and agreed to be bound thereby.
“An exculpatory clause releases in advance the second party for any harm the second party might cause the first party after the contract is entered.” While generally enforceable, such clauses are considered “distasteful to the law.” Exculpatory clauses are enforceable only if they meet the three following criteria:
(1) Their language must evidence a clear and unambiguous intent to exonerate the would-be defendant from liability for the sought-to-be-recovered damages;
(2) At the time the contract was executed, there must have been no vast difference in bargaining power between parties; and
(3) Enforcement of the clause would not (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy.
The law goes on to say that waivers will never avail to relieve a party from liability for intentional, willful or fraudulent acts or gross, wanton negligence.
The issue was whether a waiver signed by a minor and by both parents is enforceable. The U.S. District Court recognized that states were split on the issue, listing cases in which courts in some states enforce parental waivers and cases in other courts in other states that do not enforce parental waivers. The court found indications that Oklahoma law recognizes a duty to protect minor children and felt that that duty would cause the Oklahoma Supreme Court to refuse to enforce such a waiver. The court upheld the waiver against the parent’s claims, but granted summary judgment in favor of the minor plaintiff.
So, recreation providers in Oklahoma should not rely on liability waivers for total protection when the client is a minor. Parental waivers do not appear to be enforceable in the state.
Photo Credit: Thanks to Joshua M at Flickr.