By Doyice Cotten
A 2018 New Mexico rappelling case (Dominguez v. United States, 2018) illustrates clearly why it is important that waivers warn the signing client of the risks faced in the activity.
Sarah Dominguez, a civilian, participated in a team-building activity at the Para-Rescue Academy at Kirkland Air Force Base. She informed the person in charge that she had never rappelled; she said later that she had been informed there would be no climbing involved in the activity. She was presented a waiver of liability, had time to read it, and signed it.
There were some instructions, but no assessment of skill or understanding. Sarah, a would-be first time rappeller, walked up the stairs to the top of the tower and prepared to rappel. The next thing she remembers is waking up.
New Mexico Law
In applying New Mexico law, the U.S. District Court for the District of New Mexico relied on a major New Mexico Supreme Court case, Berlangieri v. Running Elk Corporation (2003). The defendant moved for summary judgment based on the waiver of liability.
The Berlangieri court had recognized New Mexico’s “strong public policy of freedom to contract” which requires courts to enforce contracts “unless they clearly contravene some law or rule of public morals.” That court, however, recognized the important public policies that supported
distribution of the economic burden of loss from the injured party to the tortfeasor, deterrence of unreasonable or immoral conduct, and allowing injured victims compensation and satisfaction for wrongs committed against them, the court recognized the need for “strict limits on the use of exculpatory agreements[.]”
Thus, the Berlangieri court held that waivers of liability should be enforced only if (1) the waiver is strictly construed and, (2) does not contravene public policy. [In this post, we will only address the first requirement.]
Regarding strict construction, Berlangieri provided that the waiver should
1) be free from legal jargon;
2) clearly and unambiguously express the intent of the parties to extinguish liability;
3) not be inordinately long or complicated;
4) should be interpreted in light of “the words surrounding the portion [of the release] being construed and the circumstances surrounding the agreement;” and
5) contain specific language informing the patron of the types of risks being assumed.
The Berlangeiri court cited Day v. Snowmass Stables, Inc., a 1993 Colorado case in which that court held that a horse-drawn hayride waiver was invalid because it did not explain the specific risks being assumed by the person who signed it. The injury occurred when a faulty piece of equipment resulted in a runaway. The Snowmass waiver failed to protect because it failed to warn of any specific risks. In part, it said:
I recognize that there is a significant element of risk in any adventure, sport, or activity associated with the outdoors. Knowing of the inherent risks, dangers and rigors involved in the activities, I certify that my family and I, including any minor children, are fully capable of participating in the activities.
Berlangieri contrasted this with the Heil Valley Ranch, Inc. v. Simkin (1989) case in which a rider was thrown from a horse.The Colorado Supreme Court in Heil Valley Ranch followed the principle that “when the parties adopt broad language in a release, it is reasonable to interpret the intended coverage to be as broad as the risks that are obvious to experienced participants.” (emphasis added). The horse rider in Heil Valley Ranch was injured when the horse she was riding reared up and fell backwards onto her. She was an experienced rider and had agreed to the following specific waiver language.
I acknowledge that the use, handling and riding of a horse involves a risk of physical injury to any individual undertaking such activities; and that a horse, irrespective of the training and usual past behavior and characteristics, may act or react unpredictably at times based upon instinct or fright which, likewise, is an inherent risk assumed by a horseback rider. The undersigned expressly assumes such risk …
The Heil Valley court enforced the waiver because it specifically addressed the risk in the first sentence.
Did the Dominguez Rappelling Waiver Warn of Specific Risks?
The waiver in Dominguez v. United States (2018) contained the following language relating to the risks faced by Dominguez, a novice at rappelling:
I am fully aware of risks and hazards connected with being on the premises and participating in the event, and I am fully aware that there may be risks and hazards unknown to me connected with being on the premises and participating in the event… knowing that conditions may be hazardous, or may become hazardous or dangerous to me and my property.
Not only are no specific dangers listed, the entire waiver fails to include the term “rappelling.” Only once does the waiver refer to “climbing activities” and once refers to the climbing tower. Based on the failure to warn of specific risks and other issues, the court ruled that the waiver was invalid and unenforceable as a bar to liability for negligence.
A Better Example
While the Heil Valley waiver was deemed to adequately warn the signer of the specific risks, a better example is found in the Florida jet ski case, Straw v. Aquatic Adventures Management Group, Inc. (2011). The waiver purported to release the provider:
. . . FROM ANY AND ALL LIABILITY OF ANY NATURE FOR ANY AND ALL INJURY . . . EVEN IF CAUSED BY THE NEGLIGENCE OF [defendant or agents].
The waiver also contained an “ACKNOWLEDGEMENT OF RISKS; . . . (1) changing water flow, tides, currents, waive (sic) action, and ship wakes; (2) Collision with . . . other participants, the watercraft, other watercraft, and manmade or natural objects; (3) Wind Shear, inclement weather, lightning, variances and extreme wind, weather and temperature; (4) My sense of balance, physical coordination, ability to operate equipment . . . (5) Collision, capsizing . . . and other hazard (sic) which result in wetness, injury, . . .; (7) Equipment failure or operator error . . . .”
In addition, the waiver has the signer agree “to assume responsibility for all the risks of the activity, whether identified or not (EVEN THOSE ARISING OUT OF THE NEGLIGENCE OF THE [defendant].”
Note that the waiver is informing the signer of many inherent risks of using jet skis; in addition, the waiver informs of the danger of injury due the provider negligence.
Not all courts require that a waiver warn the signer of specific risks of the activity. This varies from state to state. Nevertheless, it is good practice to include a good description of the inherent risks regardless of the state. Generally, courts hold that participants do not assume risks of which they are unaware. Inclusion of the risks in the waiver helps to confirm that the participant was aware of and accepted the inherent risks.
Photo Credit: Thanks to Bronco Brigade via Flickr.