By Doyice Cotten
Courts in few states have given as much guidance regarding liability waivers for negligence as has Pennsylvania. Pennsylvania has many requirements for effective waivers, but its courts consistently enforce well-written waivers that follow these guidelines.
Validity of Waivers
The Pennsylvania Supreme Court addressed the validity of waivers of liability for negligence a number of times in the previous century and in this one. It has often specified that an exculpatory clause is valid if:
- “it does not contravene any policy of the law, that is, if it is not a matter of interest to the public or state” . . .;
- “the contract is between persons relating entirely to their own private affairs” . . .;
- “each party is a free bargaining agent” and the clause is not in effect “a mere contract of adhesion whereby [one party] simply adheres to a document which he is powerless to alter, having no alternative other than to reject the transaction entirely.”
In a recent case (Chepkevich v. Hidden Valley Resort, L.P., 2010), the court referred to this as facial validity.
A Note Regarding Adhesion Contracts
While the third criteria for validity forbids the enforcement of a contract of adhesion, it should be explained at this point that subsequent Pennsylvania courts have clarified the nature of adhesion contracts as applied to participation in voluntary sports and recreational activities. Perhaps the Valeo v. Pocono International, Ind. court expressed it best in 1985 when it ruled that waivers of liability for negligence in risky sports or recreational activities were not adhesion contracts:
Automobile racing is hazardous. It gives rise to various situations in which injury or death may result to drivers and mechanics. Experienced racedrivers, such as appellant, are aware of the risks attending the sport of automobile racing. Therefore, it is not unusual for participants to examine the conditions of the raceway before agreeing to enter an event and then to release the sponsor of the event and the owner of the raceway from liability for injuries to person or damage to property occurring while the raceway is being used.
Such agreements are not contracts of adhesion. Each party is free to participate or not to participate; a race driver is under no compulsion, economic or otherwise, to engage in automobile racing on a track whose condition he has examined. An agreement exculpating the sponsor of the race and the owner of the track does not contravene public policy. It is a contract between individuals pertaining to their private affairs and does not impair generally the rights of members of the public. Such an agreement meets the test for validity enunciated in Zimmer v. Ness, (1980). Its exculpatory provisions, therefore, are enforceable.
It must be conceded, of course, that contracts providing for immunity from liability are not favorites of the law and will be construed strictly. Nevertheless, where the intention of the parties is spelled out with particularity and their agreement shows an unequivocally expressed purpose to release from liability, the law will give effect to that agreement.
Waiver law in most states takes a similar stand regarding waivers of adhesion and sport and recreational activities.
Enforceability of Waivers
The Pennsylvania Supreme Court, however, has held that even if a waiver is determined to be facially valid, it will still be unenforceable unless the language of the parties makes it clear that the provider is being relieved of liability for his own acts of negligence. The following four guiding criteria comprise the standard for evaluating the enforceability of a liability waiver:
- the contract language must be construed strictly, since exculpatory language is not favored by the law;
- the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; [Emphasis added.]
- the language of the contract must be construed, in case of ambiguity, against the party seeking immunity from liability; and
- the burden of establishing the immunity is upon the party invoking protection under the clause. (Topp Copy Products, Inc. v. Singletary, 1993)
More recently, the Pennsylvania Supreme Court in Chepkevich v. Hidden Valley resort, L.P. (2010), held that a waiver need not define the word “negligence;” in fact, it made it clear that the word “negligence” does not have to appear in the waiver so long as the intent of the waiver is clear. [When deciding on waiver language, however, one should remember that the intent of the waiver is infinitely clearer when the word negligence is used.]
Unsigned Waivers on Ski Lift Tickets
In Tayar v. Camelback Ski Corporation, Inc. (2010), the waiver at issue was an unsigned disclaimer located on the back of a ski lift ticket. The Pennsylvania Supreme Court cited Beck-Hummel v. Ski Shawnee, Inc. (2006) in which the court ruled that summary judgment on the basis of an unsigned waiver of liability was inappropriate absent evidence that the customer was made aware of the release language. The Beck-Hummel court presented three considerations for determining whether the terms of an unsigned waiver on the reverse side of a agreement were “brought home” to the signer.
- The disclaimer’s placement in the document;
- the size of the disclaimer’s print; and
- whether the disclaimer was highlightedby being printed in all capital letters or in a type style or color different from the remainder of the document.
Risk Management Take-Aways
- Waiver law in your state may differ substantially from waiver law in Pennsylvania.
- Learn about waiver law in your state.
- Do not depend on a waiver written for a business in another state.
Photo Credit: Thanks to SEDACMaps via Flickr.