Promises of Safety Can Disable Your Waiver

By Doyice Cotten

The Alaska Supreme Court has provided a 6-Element test for liability waivers. One of these elements is that “the release agreement must not represent or insinuate standards of safety or maintenance.”  In other words, watch the language of the waiver and do not promise the patron they will be safe from injury.

Langlois v. Nova River Runners, Inc.

In Langlois v. Nova River Runners, Inc. (2018), the waiver language included

Although the concessionaire has taken reasonable steps to provide you with appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled, we wish to remind you this activity is not without risk.

The plaintiff claimed that this language did insinuate standards of safety or maintenance, thereby making the waiver unenforceable.

The court considered this and pointed out that

… this statement is introduced by the word “[a]lthough” and falls within the same sentence as the disclosure that “this activity is not without risk.” This sentence is immediately followed by a sentence indicating that “[c]ertain risks cannot be eliminated without destroying the unique character of the activity.” And the Release goes on to list 11 risks inherent in whitewater rafting. Reading the Release as a whole, we cannot conclude that it represented or insinuated standards of safety or maintenance.

Ledgends, Inc. v. Kerr

In Ledgends, Inc. v. Kerr (2004), the waiver read, in part,

“[w]hile we try to make the [premises] safe” and “[w]hile we strive to provide appropriate equipment for people of all abilities and to keep the equipment in good condition…” .

The court stated that

[t]he representations in the release regarding the [defendant]’s own efforts toward safety suggest that the release was predicated on a presumption that the [defendant] would strive to meet the standards of maintenance and safety mentioned in the release.

The waiver was not enforced for that reason and because the intent to release from negligence was not clear and explicit.

Comparing the Two Waivers

The two waivers differed considerably. The waiver in Kerr contained language representing safety standards throughout, whereas NOVA’s Release contains only a single half-sentence to that effect. Additionally, NOVA’s waiver disclaimed safety standards in referring to the activity as “not without risk;” further, the waiver then listed 11 risks of the activity.  In contrast, Kerr’s waiver promised to “try to make the [premises] safe.” NOVA merely promised to take “reasonable steps to provide . . . appropriate equipment and/or skilled guides” and acknowledged that these precautions could not mitigate all the risks posed by a whitewater rafting trip.

Risk Management Take-Away

Make no assertions regarding your efforts to protect the patron. Do not promise or guarantee that they will have a safe experience. Do not proclaim the quality of your personnel.

Photo Credit: Thanks to Christopher Jensen via Flickr.