By Doyice Cotten
Brenda Fecke, a senior at LSU, fell while bouldering at the LSU Recreation Center indoor rock climbing wall facility. The fall resulted in an ankle injury; this was followed by a lawsuit alleging negligence on the part of LSU (Fecke v. The Board of Supervisors of Louisiana State University, 2015 La. App. LEXIS 1357). Among the many allegations was that the university gave minimal instructions and failed to determine her skill level prior to allowing participation. On the other hand, she chose not to wear a safety harness and she and her companion did not spot each other.
Prior to bouldering, Fecke signed a required waiver of liability. The Agreement was a one-page document containing eight paragraphs. The first four paragraphs follow:
I understand and agree that there is a risk of serious injury to me while utilizing University Recreation facilities, equipment, and programs and recognize every activity has a certain degree of risk, some more than others. By participating, I knowingly and voluntarily assume any and all risk of injuries, regardless of severity, which from time to time may occur as a result of my participation in athletic and other activities through LSU University Recreation.
I hereby certify I have adequate health insurance to cover any injury or damages that I may suffer while participating, or alternatively, agree to bear all costs associated with any such injury or damages myself.
I further certify that I am in good health and have no mental or physical condition or symptoms that could interfere with my safety or the safety of others while participating in any activity using any equipment or facilitates of LSU University Recreation. I understand and agree that I alone am responsible to determine whether I am physically and mentally fit to participate, perform, or utilize the activities, programs, equipment or facilities available at Louisiana State University, and that I am not relying on any advice from LSU [Pg 16] University Recreation in this regard. To the extent I have any questions or need any information about my physical or mental condition or limitations, I agree to seek professional advice from a qualified physician.
Further, I hereby RELEASE AND HOLD HARMLESS, the State of Louisiana, the Board of Supervisors of Louisiana State University and Agricultural & Mechanical College, and its respective members, officers, employees, student workers, student interns, volunteers, agents, representatives, institutions, and/or departments from any and all liability, claims, damages, costs, expenses, personal injuries, illnesses, death or loss of personal property resulting, in whole or in part, from my participation in, or use of, any facility, equipment, and/or programs of Louisiana State University.
The problem with the waiver was that Louisiana Civil Code article 2004 provides:
Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party.
Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.
In light of this statute, the court determined that paragraph four (in blue) of the waiver was null because it excludes the liability of the LSU Board for causing physical injury to Ms. Fecke. The first three paragraphs all deal with the inherent risks and are not in conflict with the prohibiting statute. The issue then became whether a redacted version of the Agreement should become evidence. The trial court chose to give the jury an instruction instead of providing a redacted version of the Agreement.
The appellate court stated that the trial court was correct in prohibiting entry of paragraph four; however, the appellate court held that the remainder of the document does not constitute an illegal waiver of liability. It ruled that the exclusion of a redacted version was an error by the trial court, but held that the error was not prejudicial. It stated that “the inclusion of the remainder of the Agreement at trial could not have permissibly changed the jury’s verdict based on our de novo review of the record.”
In this case, the waiver, or the exclusion of the redacted document, had no effect on the outcome of the case; however, the ruling permitting the redacted waiver is important since a redacted waiver could be used to show that the signer was, or should have been, informed of the inherent risks of the activity and had expressly agreed to assume the inherent risks.