By Doyice Cotten
There are literally hundreds of waiver cases in which the waiver protected the provider from liability for ordinary negligence by the provider. In the Salinger case below, the waiver specifically stated that Grace Farms was released from liability for negligence (meaning ordinary negligence) and would have protected the provider from such liability. However, the plaintiff alleged “greater than ordinary negligence,” which in Minnesota meant willful and wanton conduct. In most states, waivers do not protect against gross negligence, reckless misconduct, or willful/wanton conduct. In contrast, in Wabash the waiver did not specify protection against liability for “negligence,” but rather, said provider was not responsible for injury. In Indiana, the waiver MUST specify with clarity that the intent is to relieve on of negligence liability.
A 12-year-old girl was injured when riding a horse (Salinger v. Leatherdale, 2012 Minn. App. Unpub. LEXIS 958). She signed up for dressage, had two lessons, was taken on an unwanted trailride, was frightened by the horse and had trouble controlling it, and asked for a new horse or help with it on several occasions. The horse bolted, she fell, and was stepped on by the horse. The defendant claimed protection based on a waiver signed by the dad. The waiver contained a warning of inherent risk and the following exculpatory language:
I am participating voluntarily in the sport of riding horses. I understand and am fully aware that riding and being around horses involves inherently dangerous risks of serious injury or death, and by participating I expressly assume all risks associated with my activities on the property . . . . I further agree to release and hold harmless Grace Farms MN, Inc. from any liability, responsibility or negligence for any claims [emphasis added], damages, or injuries caused by myself or my horse(s).
The waiver would have ordinarily protected against liability for falls from horses or from ordinary negligence, however two allegations: 1) that the defendant had enlarged the risk in the selection of the horse and actions of the trailride leader and 2) that the actions of the leader constituted action above and beyond ordinary negligence. The case was remanded.
In Wabash Young Men’s Christian Association, Inc. v. Thompson (2012 Ind. App. LEXIS 428), a girl was injured sliding into second base. The court stated that Indiana law requires that a waiver must specifically and explicitly refer to the negligence of the party seeking release, however courts have found clauses sufficiently explicit in the absence of the word “negligence” itself. The court went on to say that liability for inherent risks may be barred by a waiver that does not specifically and explicitly refer to the negligence of the provider.
I (parent or guardian) Charlene Thompson hereby give permission for Taylor Thompson to participate in Metro League Baseball/Softball. I further understand that injuries can occur and will not hold the field, sponsor, coaching staff or league responsible for injury [emphasis added] or medical expenses incurred while participating in practice or playing in a game. I also affirm that my child is physically fit to participate in athletic activities.
The YMCA waiver did not protect against negligence; as it turned out, this was not important because the court held that there was no negligence – that injury in a slide was an inherent risk of the game. Consequently, the waiver did protect against injuries resulting from inherent risks.
Be certain that you have a well-written waiver. It is best to have someone who knows about both sport and waiver law – and will be much cheaper than a lawsuit.
Photo Credit: Thanks to SD Dirk at http://www.flickr.com/photos/dirkhansen/6824336323/sizes/n/ for the photo.