This article was taken from Waivers & Releases of Liability 7th ed. and updated for SportWaiver.com. Click SportWaiver for a limited time special price on the book.
By Doyice Cotten
Waivers are now enforceable and can protect the service provider from liability for ordinary negligence in almost every state. However, courts in most states generally hold that waivers intended to protect against gross negligence, reckless conduct, willful or wanton conduct, and intentional acts are against public policy. Consequently, courts in almost all states refuse to enforce waivers attempting to protect a provider from such extreme acts.
Ordinary negligence has been described as the failure to act as a reasonably prudent professional would act under the circumstances. It is sometimes said to be the failure to use the care that a prudent or careful person would use. It is generally felt to involve carelessness or inattention on the part of the responsible party. Gross negligence and the other terms generally refer to more extreme acts. For instance, some describe gross negligence as the failure to use the care that even a careless person would use. Definitions of each of these terms generally include a “conscious indifference” to the risk or danger present and the decision to proceed in the face the virtual certainty of injury to another party.
States Enforcing Waivers for Extreme Actions
There are exceptions to this rule as some states do seem to enforce such waivers so long as the waiver specifies that gross or reckless conduct is intended. Five states seem to enforce waivers for gross
States that Have Enforced Waivers for Acts Exceeding Ordinary Negligence
|States Enforcing Waivers
in at Least One Case
For Gross Negligence
|States that have Enforced
Waivers for Reckless
or Intentional Acts
Kentucky N. Carolina
negligence and two enforce them for reckless or intentional acts as well. (Barber v. Eastern Karting Co., 1996)
For professionals in the recreation, fitness, or sport industries, it is often difficult to distinguish between ordinary negligence and extreme forms of negligence. Common definitions are usually of little practical help; however, the following cases provide good examples of extreme negligence.
Providers were found grossly negligent in a Massachusetts triathlon case. (Lautieri v. Bae, 2003) In the bicycling leg of a triathlon, the race director failed to heed a number of industry safety standards regarding intersections – leaving the intersection at which the incident occurred 1) open to automobile traffic; 2) uncontrolled by police or volunteers; 3) with no warning signage for contestants or drivers; and 4) unmonitored.
In a California case (Martinez v. Swartzbaugh, 2002), a lady was a successful bidder in a silent auction for a “ride around” as a passenger in a McLaren racecar. The “ride around” was to consist of a few leisurely laps around the track. Without warning, the driver suddenly accelerated to 140 mph while neither the driver nor the passenger had a helmet, seat belt, or other safety device. On the second lap, the driver then lost control of the car and crashed, causing serious injuries to the passenger. There was sufficient evidence to give rise to a triable issue of fact as to whether the action was grossly negligent. The reader can easily see that these acts far exceed the common acts of ordinary negligence such as failure to inspect a piece of equipment, failing to properly match a rider to an appropriate horse, or improperly adjusting ski bindings.
In addition, a recent Alabama case clearly illustrates the unenforceability of a waiver for an intentional act. A woman who got a tattoo on her breast sued for invasion of privacy when the artist published a photograph in a magazine.(Minnifield v. Ashcraft, 2004) The plaintiff had signed a waiver, however, the court held that it was against public policy to enforce a waiver for an intentional act.
Waivers can protect against ordinary negligence in almost every state. Waivers intended to protect against extreme forms of negligence have been effective in very few states and there is no guarantee they will be enforced again in those states. If the reader wants to attempt to be protected against liability for extreme actions, be certain to include the appropriate term within the waiver. A better solution, however, would be to initiate a risk management program and reduce the likelihood of both negligence and extreme actions – thereby reducing injuries and lawsuits.
 Theis v. J & J racing Promotions, (Fla. 1990); Borden v. Phillips, (Fla. 2000); Maness v. Santa Fe Park Enterprises, Inc., (Ill. 1998); Donegan v. Beech Bend Raceway Park, Inc., (Ky., 1990); Couglin v. T.M.H. International Attractions, Inc., (Ky.,1995); Valeo v. Pocono International Raceway, (Pa., 1985); Nicholson v. Mount Airy Lodge, Inc., (Pa.,1997); Mandell v. Ski Shawnee, Pa., 2007); Barber v. Eastern Karting Co., (W.Va. law, 1996); Brown v. Robbins, (N.C., 2007).