By Doyice Cotten  

The primary purpose of a liability waiver is to protect the entity from liability for injuries resulting from the negligence of the entity and its employees. A secondary function of the waiver is to help provide protection from liability for injuries resulting from the inherent risks of the activity. Technically, the provider is not usually liable for injuries associated with the inherent risks – provided the injured party was familiar with those inherent risks. The listing of inherent risks in the waiver can provide evidence that the participant was aware of the inherent risks; further, courts in many states are beginning to require that the inherent risks of the activity be listed in the waiver. Regardless of whether that is the case for your state, it is never a bad idea to include the inherent risks in your waiver.

In Morgan v. Water Toy Shop, Inc. (2018), the waiver used by the jet ski provider gives us an excellent example of a waiver that includes the inherent risks. Note that the first half of the waiver addresses the inherent risks of the activity and the participant affirms knowledge of the risks. Notice also that the participant acknowledges understanding of personal watercraft operational instructions and agrees to abide by them. As you read the list of risks, you will notice the breadth of the list.

The waiver follows:

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PERSONAL WATERCRAFT RENTAL OPERATIONS

 RELEASE OF LIABILITY, WAIVER OF CLAIMS, EXPRESS ASSUMPTION

OF RISK AND INDEMNITY AGREEMENT

Please read and be certain you understand the implications of signing. Express Assumption of Risk Associated with use of rental of Personal Watercraft and Related Activities

I, do hereby affirm and acknowledge that I have been fully informed of the inherent hazards and risks associated with motorized (e.g., jet ski) or non-motorized (e.g., kayak) and related water sport activities to which I am about to engage, including but not limited to:

1) changing water flow, tides, currents, wave action, and ship’s wakes;

2) collision with any of the following:

•                other participants,
•                the watercraft,
•               other watercraft,
•               man made or natural objects,
•               shuttle boat;

3) wind shear, inclement weather, lightning, variances and extremes of wind, weather and temperature;

4) my sense of balance, physical condition, ability to operate equipment, swim and/or follow directions;

5) collision, capsizing, sinking, or other hazard that may result in wetness, injury, exposure to the elements, hypothermia, impact of the body upon the water, injection of water into my body orifices, and/or drowning;

6) the presence of insects and marine life forms;

7) equipment failure or operator error;

8) heat or sun related injuries or illnesses, including sunburn, sun stroke or dehydration;

9) fatigue, chill and/or reaction time and increased risk of accident.

I specifically acknowledge that I read, understand and agree to abide by the Personal Watercraft Operational instructions at all times and that I have been trained in the safe use of watersport equipment to my complete satisfaction, and I am physically/mentally able to participate in the water sport activities to which I am about to engage.

I specifically waive any defense insofar as this contract is concerned that may arise as a result of any state or local law and/or regulation or policy that may impact its enforceability.

RELEASE OF LIABILITY, WAIVER OF CLAIMS

AND INDEMNITY AGREEMENT.

In consideration of being allowed to participate in the above described activities, as well as the use of any of the facilities and the use of the equipment of the below listed releases, I hereby agree as follows:

1) To waive and release any and all claims based upon negligence, active or passive, with the exception of intentional, wanton, or willful misconduct that I may have in the future against all of the following named persons or entities herein referred to as releasees.

. . .

2) To release the releasees, their officers, directors, employees, representatives, agents, and volunteers, and vessels from any liability and responsibility whatsoever and for any claims or causes of action that I, my estate, heirs, executors, or assigns may have for personal injury, property damage, or wrongful death arising from the above activities, whether caused by active or passive negligence of the releasees or otherwise, with the exception of gross negligence. By executing this document, I agree to hold the releases harmless and indemnify them in conjunction with any injury or loss of life that may occur as a result of engaging in the above activities.

3) By entering into this agreement, I am not relying on any oral or written representation or statements made by the releasees, other than what is set forth in this Agreement.

I hereby declare that I am of legal age and am competent to sign this Agreement or, if not, that my parent or legal guardian shall sign on my behalf and that my parent or legal guardian is in complete understanding and concurrence with this Agreement.

I have read this Agreement, understand it, and I agree to be bound by it.

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In the second half of the waiver, the participant waives liability for injuries resulting from the negligence of the provider, Water Toy Shop, Inc. Notice that this part of the waiver is separated from the section addressing liability for the inherent risks of the activity by a second subhead. This is important; many waivers have failed to protect when the court could not tell for certain that the waiver was intended to protect against both negligence and inherent risks.

Risk Management Take-Aways

• Be certain to include a list of some of the typical inherent risks of the activity in the waiver.  Make it clear that this is not a complete list of all inherent risks.
• Address inherent risks and negligence risks separately.
• Take a look at your waiver. Does it inform the signer of the inherent risks?

Photo Credit: Thanks to Michael McCarthy via Flickr.