By Doyice Cotten
Most states have enacted at least one of what are sometimes called sport safety acts or shared responsibility statutes (e.g., equine, ski, whitewater rafting) intended to define or limit the liability exposure of operators of selected activities.
Some of these statutes hold the operator to a duty of ordinary care. When they do, a waiver cannot protect the operator in the event of ordinary negligence. Other statutes prescribe a list of specific duties of the operator. If the injury is caused by failure to meet one of those duties, the waiver will not protect. Other sport safety statutes do not mandate ordinary care or list mandatory duties of the provider. In these cases, the statute does not directly affect the use or validity of waivers.
Statutes that Prohibit the Use of Waivers
Sport safety statutes that require a duty of ordinary care include Alaska’s AS 05.45.010-.210 which prohibits the enforcement of waivers by ski area operators. A North Carolina statute (NC Gen Stat §99C-2(c)(7)) requires ski area operators to engage in non-negligent conduct; consequently, a federal court failed to enforce a North Carolina ski waiver (Strawbridge v. Sugar Mountain Resort (2004). The court stated that the enforcement of a ski waiver would violate the statute; the waiver would be unenforceable since it runs counter to the public interest. The New Mexico legislature passed an Equine Liability Act (NMSA 1978, sec. 42-13-4 ) that mandates that equine providers have a duty to not be negligent. Based on this statute, the New Mexico Supreme Court held that providers could not avoid this statutory duty by the use of liability waivers (Berlangieri v. Running Elk Corporation, 2003). Waivers were not upheld in two West Virginia whitewater rafting cases because WVa Code Sec. 20-3B-3(b) imposes a standard of care upon commercial whitewater guides (Murphy v. North American River Runners, Inc., 1991; Johnson v. New River Scenic Whitewater Tours, Inc., 2004). In these states, for these activities, waivers are not enforceable and will not protect the provider.
Statutes that Require Adherence to Specified Duties
Statutes in some states state that the operator has a duty to follow the specified duties prescribed in the statute. The Colorado statute (Colo Rev Stat § 33-44-104(1)) prohibits protection by the waiver if the ski area operator violated any of the specified duties. Other states following this strategy for ski areas include Idaho (Idaho Code 6-11-1107); New Mexico (NM Stat Ann §24-15-11); West Virginia (WVa §20-3A-6) ; and Utah (Utah Code Ann §78B-4-401). The court in a Tennessee case (Teles v. Big Rock Stables, 2006), referenced the state equine statute (T.C.A. 44-20-104). The waiver protected the stables from liability for ordinary negligence, but did not release the statutory liability for injuries resulting from faulty tack. Other related cases include Anderson v. Vail Corp., CO, 2010; Rothstein v. Snowbird Corp., UT, 2007. In these states, providers of these activities will not be protected by a waiver if they violate one of the specified duties. It is not clear if a waiver protects from a negligent action that is not in the list of duties.
Statutes that Allow Waivers to Protect Against Negligence Liability
In contrast, in many cases the statute does not require a duty of ordinary care or include specified duties that must be met to avoid negligence. The following are examples of instances where the statute does not require a duty of ordinary care. In Penunuri v. Sundance Partners, Ltd. (2011), the court ruled that the Utah Equine Act (Utah Code Ann. 78B-4-201 to-203), while protecting providers from liability for inherent risks, presupposed the continued use of waivers between equine activity sponsors and participants as protection from liability for ordinary negligence. Michigan equine statute MCLA 691.1664-4(2) provides that “Two persons may agree in writing to a waiver of liability beyond the provisions of this act and such waiver shall be valid and binding by its terms.” A Michigan court (Terrill v. Stacy, 2006) found that a waiver barred a negligence claim. In Raveson v. Walt Disney World, (2001) the court declared there was nothing in the Florida equine statute (Fla. Stat. ch. 773.03(2)(b)) that would prevent waivers. In these states, the statutes do not require ordinary care; protection from negligent actions can be gained by the use of waivers.
There are dozens of sport safety statutes. Sport safety acts have been passed for a number of different sport activities. The acts discussed here are a few in which there has been legal action regarding a waiver. The point is that providers need to investigate to determine if the provider’s state has an applicable statute. Find out if you are affected by such a statute. This is particularly important if your sport is skiing, equine, skating, outfitter, or shooting sport.