It’s the Law: Waiver of liability is generally enforceable

Q: Last week I took a parasail ride. The operator required me to sign a form entitled “release and waiver,” releasing the operator from liability in case I got hurt. Are those releases enforceable?

A: Increasing concern for liability has led to increasing use of participation forms including waiver and release provisions. These release forms are disfavored by the courts, but are generally enforceable. Courts strictly construe the releases, which can result in a court finding that the release language does not include liability for the action causing injury.

Purveyors of activities like parasailing, mountain climbing or amusement rides often require releases be signed prior to participation. The releases are an effort to avoid liability in event of injury. They are also frequently required by the liability insurance carrier for the purveyor.

Language used in these forms is critical. They are strictly construed by the court, which means the forms are narrowly applied to the precise and limited actions specified in the form. This is particularly true where it is claimed that the form waives liability for negligence of the purveyor.

Negligence waivers must be clear, specific and unequivocal. Numerous Florida courts have held that it is not presumed a contract is intended to protect someone against his own negligence. If there is any ambiguity in the release, it will not usually be effective.

A recent case involving participation in an exercise program is illustrative. In that case, the participant signed a form including a waiver provision which stated he was aware that accidents could happen even “where reasonable precaution is taken.” The form went on to confirm an exchange for allowing participation in the activity, the participant released the provided from all liability for any “injury, loss or damage connected in any way whatsoever to … participation in … activities, whether on or off premises. I understand that this release includes any claims based on negligence, action or inaction by the (entity), its staff, directors, members and guests.”

The person signing the form was injured using exercise equipment at the exercise facility. Suit was filed, claiming that the facility was negligent in failing to maintain, inspect and repair its exercise equipment.

The trial court dismissed the lawsuit, on ground that the release was sufficiently clear and unequivocal. The injured person filed an appeal. The appellate court reversed.

The appellate court emphasized that releases from negligence must be clear and unequivocal. It noted that the waiver did specifically release the entity from liability for “any claims based on negligence.” It went on to note that the waiver implied that the entity would take “every reasonable precaution” against accidents. It concluded that confusion resulted from the juxtaposition of the “every reasonable precaution” provision with the provision for the release of “any claims based on negligence.”

The court explained a reasonable reader could believe that the waiver was limited to claims for injuries that were unavoidable, “even where every reasonable precaution” had been taken. This confusion, when coupled with judicial disfavor of exculpatory clauses, combined to make the clause unenforceable in that case.

Waiver and releases fare even worse where children are involved. For many activities, parents are required to sign forms waiving and releasing the service provider from liability, including liability for the provider’s own negligence. These forms are common for summer camps, sports leagues and even less risky activities like dance classes. Where those activities are sponsored by a commercial, for-profit operation, they are unenforceable as against public policy.

Florida courts have held that for-profit enterprises can insure against the risk of loss from negligence and include that cost in the price of participation. A consenting adult has ability to avoid injury by exercising caution. Courts have explained that children tend to throw caution to the wind during risky activity, making them especially vulnerable. Although parents can sign the release for their children, the state has an over riding interest in protecting children.

In contrast, community-based organizations often provide services to the entire community, including those who can not afford the cost of admission will find more favorable treatment by the court. The Florida Supreme Court has not yet issued a decision adopting the distinction between community-based organizations and for-profit enterprises.

A waiver and release is a contract document. As with all contracts, words and phrases are critical. Before signing a waiver and release, it should be read carefully. If you sign and then are injured, language of the agreement and all relevant facts will determine if you are precluded from seeking compensation for your injuries. In these cases, good legal advice is critical.

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William G. Morris is a lawyer with offices at 247 N. Collier Blvd., Marco Island. The column is not intended to be legal advice for specific circumstances. General questions can be sent by e-mail to wgmorrislaw@earthlink.net or by fax to (239) 642-0722. Read other columns at http://www.wgmorris.com.

© 2008 marconews.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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