By Doyice Cotten
Aaron Morgan was a Kent State University student enrolled in a beginning karate class when he suffered injury. The instructor was demonstrating a technique when Morgan dropped his guard; this resulted in a blow to the face. Morgan alleged negligence on the part of the instructor since facial contact was prohibited and the instructor failed to wear protective gloves – the instructor’s own policy (Morgan v. Kent State University, 2015).
Kent State contends that it is entitled to judgment as a matter of law based upon both an express assumption of risk through a written waiver of liability and the doctrine of primary assumption of the risk. Plaintiff claims they are unfair and unconscionable because of the disparity in bargaining power between the parties. Plaintiff further contends that he did not assume the risk of injury to his face inasmuch as facial contact was prohibited and, therefore, not foreseeable.
The waiver language included “for any purpose including, but not limited to observation, use of facilities or equipment, or participation in any way * * *.” It went on to state that the plaintiff
“RELEASES, WAIVES, DISCHARGES AND COVENANT NOT TO SUE [KSU] its employees, instructors or agents; (hereinafter refer to as ‘releasees’) from all liability to the undersigned; for any loss or damage, and any claim or demands therefore on account of injury or illness to the person * * * whether caused by the negligence of the releasees or otherwise, while the undersigned is in, upon, or about the premises or any facilities or equipment therein.”
Also included was the clause
“THE UNDERSIGNED HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE due to the negligence of the releasees or otherwise, while the undersigned is in, upon, or about the premises of [KSU Wellness Center] and or while using the premises or any facilities or equipment hereon.” .
Express assumption of the risk is when the parties expressly agree to release liability; this agreement is generally upheld in Ohio and will relieve a party from liability for its own negligence. Ohio courts tend to apply such releases to bar future tort liability in recreation and sport cases as long as the intent of the parties is in clear and unambiguous terms.
The court held that the Kent State waiver clearly and unambiguously identifies the parties and the type of liability which is being released. The terms were unambiguous; stated that plaintiff accepts the risk of injury while on the premises; waived claims arising from injuries; and plaintiff agreed not to sue defendant for any such injury. The injury resulted from alleged negligence during his participation in activities at the facility – thus the court found that the waiver barred the claims of Morgan.
Risk Management Notes
1. A well-written waiver voluntarily signed by an adult participant will protect the sport or recreation provider from liability for injuries resulting from the negligence of the provider in most states.
2. Be sure that your waiver is well-written and specific to your business; don’t copy one from the Internet or a book.
3. Waiver law differs from state to state. While courts in most states enforce waivers, most states have some specific requirements that must be met by the waiver. Find out the waiver law for your state.
4. Note that in the Ohio case above, the waiver protects the instructor and university even if the instructor’s actions were negligent.
Photo Credit: Thanks to PKA Karate in Flickr.