Use the Word “Negligence” in Kentucky Waivers!

By Doyice Cotten

Courts in some states require that the word “negligence” be included in a waiver. Some strongly urge the use of the term. Others simply specify that the intent of the waiver to cover negligence must be clear.

A recent Kentucky case involving a paintball injury (Bowling v. Asylum Extreme, L.L.C., 2011 Ky. App. Unpub. LEXIS 801) addressed the issue of whether the waiver must specifically refer to the “negligence” of the provider in the waiver. The court cited a Kentucky Supreme Court ruling in a non-sport case (Hargis v. Baize, 168 S.W.3d 36 (Ky. 2005) in which the court clarified the issue stating that a pre-injury waiver is to be upheld only if:

1)      it explicitly expresses an intention to exonerate by using the word “negligence;” or

2)      it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party’s own conduct; or

3)      protection against negligence is the only reasonable construction of the contract language; or

4)      the hazard experienced was clearly within the contemplation of the provision. Thus, an exculpatory clause must clearly set out the negligence for which liability is to be avoided.

In Bowling, the waiver stated:

WAIVER AND RELEASE OF LIABILITY

In consideration of AE furnishing services and/or equipment to enable me to participate in paintball games, I agree as follows:

I fully understand and acknowledge that; (a) risks and dangers exist in my use of Paintball equipment and my participation in Paintball activities; (b) my participation in such activities and/or use of such equipment may result in my injury illness including but not limited to bodily injury, disease strains, fractures, partial and/or total paralysis, eye injury, blindness, heat stroke, heart attack, death or other ailments that could cause serious disability; (c) these risks and dangers may be caused by the negligence of the owners, employees, officers or agents of AE; the negligence of the participants, the negligence of others, accidents, breaches of contract, the forces of nature or other causes. These risks and dangers may arise from foreseeable or unforeseeable causes; and (d) by my participation in these activities and/or use of equipment, I hereby assume all risks and dangers and all responsibility for any losses and/or damages, whether caused in whole or in part by the negligence or other conduct of the owners, agents, officers, employees of AE, or by any other person.

I, on behalf of myself, my personal representatives and my heirs, hereby voluntarily agree to release, waive, discharge, hold harmless, defend, and indemnify AE and it’s [sic] owners, agents, officers and employees from any and all claims, actions or losses for bodily injury, property damages, wrongful death, loss of services or otherwise which may arise out of my use of Paintball equipment or my participation in Paintball activities. I specifically understand that I am releasing, discharging and waiving any claims or actions that I may have presently or in the future for the negligent acts or other conduct by the owners, agents, officers or employees of AE. (Emphasis added).

The court enforced the waiver saying that the waiver met not one, but all four of the Hargis requirements for a waiver. It is apparent that it is not mandatory that the term “negligence” be used. Nevertheless, in Kentucky, as well as in every state, the chances of a waiver being upheld are increased significantly if the waiver clearly states that the provider is relieved of liability for injuries resulting from the “negligence of the provider.”

Photo Credit:   Thanks to virginsuicide photography’s photostream at http://www.flickr.com/photos/bneumann/.