Science Assignment(Quality work, A++, On time)

77

WAIVERS AND AGREEMENTS TO

PARTICIPATE

SECTION 1 THE WAIVER

Waivers (exculpatory agreements1) are intended to release or reduce the recreation or sport provider’s liability exposure from their users, guests, patrons, visitors, clients, and participants. Waivers need to be considered in sport and recreation activities because of the litigious nature of society. Recreational sport and natural resource managing agencies provide recreation experiences that tend to be risky. White water canoeing, mountain climbing, spelunking, and contact sports, etc., provide separate and significant risk possibilities. Waivers, releases, and agreements to participate tend to inform the participant, justify the activity, excuse of danger, and clear the agency from fault or guilt arising from an accident or damages.2 There is a common misconception that waivers “are not worth the paper they are written on.” The idea that waivers are never upheld is simply untrue. The court’s response to the validity of waivers and releases varies with individual judges and jurisdictions, but waivers are upheld when they meet certain legal requirements.

Waivers are consensual agreements to accept the normal risks associated with recreation- or sport-related activities. A waiver is therefore a contract, since it is an agreement where both parties have something to gain from the deal. As such, a waiver is valid only if it holds up to the same scrutiny a court would give a contract.

C H A P T E R 7

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There are six basic points to remember about waivers. 1. A waiver must be clearly written and easy to understand.

The law requires that a valid contract can only be made when both parties agree to its terms. In legal terms, this is called ‘a meeting of the minds.’ An offer is made by one party and it is accepted by the other. A court will generally find that the terms of a waiver have been accepted only when it is also found that the participant fully understood those terms. It is obviously difficult to have a mutual agreement when one of the parties does not know what is going on. Therefore, a waiver needs to be written in plain English and not in the convoluted language to which many lawyers have grown accustomed.

2. It must be made obvious that it is a waiver. Just as it is impossible to have a meeting of the minds when a document is

written in a way that it cannot be understood, it is impossible to agree to the terms of a waiver when the participant does not understand that she is signing a waiver. This point seems obvious, but it is surprising how often this issue arises. Waivers are sometimes found in the strangest places. They are sometimes written on the back side of tickets, medical forms, sign-up sheets, or as the following case illustrates, the bottom of a softball roster. They are also often tucked away in the text of some long and boring document, or written in print so small that a magnifying glass is needed to decipher it. The courts often frown upon waivers constructed in this manner.

A waiver needs to be situated at a location in the document where it will put the participant on notice that they are signing a waiver and giving up an important right. Waivers should be located on the front page of the document where possible and written in bolded, capital letters (e.g., WAIVER OF LIABILITY). The following case illustrates the problems that can arise when waivers are not located front and center on the document.

In the case of Johnson v. Rapid City Softball Assoc.,3 Darci Johnson had signed up to play in a softball league. During one of the games, she had rounded second base, and anticipating a close play at third base, decided to slide. She injured her ankle in the play. She claimed that the city who owned and operated the field was negligent because they had failed to put the base in the correct position and keep it in good shape. Darci sued the city for negligence. She lost her case in the trial court and appealed.

Prior to playing in the league, Darci was required to sign a roster and she did. As it turned out, at the bottom of the roster, there was a waiver. Darci claimed that she didn’t see it, even though it was highlighted in red ink and written in bold letters. Therefore, her attorneys argued that from a legal standpoint, she could not

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have consented to the waiver terms since she didn’t know she was signing a waiver in the first place.

The court stated that one of the essential elements of a contract is that both parties consent to it. If a waiver is written at the bottom of a roster beneath the signature lines, as was done in this case, it becomes uncertain whether consent to agree to the terms of the waiver is fairly and knowingly made. Therefore, the court sent the case back down to the lower court so that a jury could determine whether Darci consented to the terms of the waiver.

In the case of Dombrowski v. City of Omer,4 Gregory Dombrowski had decided to participate in a rope-climbing event at an annual summer festival. In this event, participants climb hand over hand on a rope strung across a river. Gregory had almost made it across the river when he lost his grip, fell headfirst into the river and was seriously injured. He sued the city for negligence and lost. The primary reason he lost the case was he had signed a waiver. The city required each participant in the rope-climbing event to sign a waiver before entering. The words “WAIVER OF LIABILITY” were clearly and boldly displayed at the top of the form. Also, the waiver terms were written in a clear and straightforward manner, and the document was not misleading. Since the waiver was valid and the city’s conduct was not willful or wanton, the city was released from liability.

3. A waiver must be signed by one of majority age. For many types of contracts to be enforceable, they must be written and

signed. This is the case with most waivers. The participant must sign the waiver form. Signing the waiver offers proof that you have read and understood the terms. The participant, however, must be competent to perform the task of signing. In other words, he must be able to understand the terms of the contract. Many courts will hold that those who are mentally disabled or of a young age cannot form the necessary intent to enter into a binding contract, because they cannot fully understand its terms. Minors, in most states, are classified as those people under the age of 18. A waiver signed by a minor is not enforceable.

Also, in most states, a waiver signed by a parent on behalf of a minor is not enforceable against the minor. The same is generally true when a guardian signs a waiver on behalf of a minor or someone with a disability that makes him incapable of entering into a contract. When the parent or guardian signs a waiver, they usually give up their own right to sue but have not given up the rights of the minor to sue. The following case illustrates what happened in the state of Washington when a parent signed a waiver for her child while on a ski vacation.

In the case of Scott v. Pacific West Mountain Resort,5 a 12-year-old boy was on vacation with his parents at a western ski resort. He had been skiing for two

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years, so his parents decided to enroll him in ski racing lessons. His mother filled out and signed the application for the ski school that contained waiver of liability language. With that, the boy was enrolled and began his lessons. A race course was set up by the ski school owner for the students to use for practice.

He was cruising down the course on one of his practice runs when he missed a marker and lost control. He headed off the course directly toward a small shack. The shack was elevated by wooden support beams. When he attempted to turn his skis to avoid the structure, he was thrown forward and underneath it, hitting one of the supports in the process. He had severe head injuries. The boy’s parents sued the ski school for negligence. The trial court found that the waiver was valid, and therefore the ski school was not liable. The case was appealed.

The state supreme court reversed the decision of the trial court. One of the issues addressed was whether a parent could sign away the rights of her child to sue for negligence. The court held that parents do not have the authority to sign away those rights. The court felt that it would be against public policy to allow parents to sign away those rights, because there are times when parents might not have the financial means to provide care for a seriously injured child. In such cases, the child would have no recourse against a negligent party to get the money they would need to deal with their incapacity. Additionally, the court held that although the child’s suit is not barred, the parent’s suit is barred by the waiver agreement.

4. A waiver must be specific as to what it covers. Drafting the waiver document is usually the job of a lawyer. It must be

done, however, with the help of the client, so that all of the bases are covered. Everything that could possibly go wrong should be considered first. Then the waiver can be tailored to cover those areas that the client and attorney agree need the greatest attention. Often a waiver will only free the recreation provider of liability from natural occurrences that are beyond everyone’s control. At times, however, it might be wise to include language in the waiver that relieves the recreation provider of liability for situations over which they do have control. In the following case, for example, the ski operator’s waiver might have relieved them of ordinary negligence had specific language been included in the waiver.

Waiver language, however, can generally not relieve the provider of liability for acts that are willful and wanton. Willful acts include acts that are committed when a dangerous condition is known and nothing is done to correct it. Wanton acts occur when there is a great chance that someone will be hurt due to a dangerous condition and no care is taken to warn or protect people from it. An example of a willful and wanton act might be when a mountaineering outfitter supplies climbers with a rope that they know is badly worn and unsafe, and a climber is subsequently

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injured in a fall resulting from the faulty equipment. A waiver could not be written so as to protect the outfitter from such willful and wanton conduct.

In the case of Sirek v. Fairfield Snowbowl, Inc.,6 Veda Sirek had rented skis at a commercial ski resort. She had her own boots, so all she needed was the skis and bindings that would fit properly. Before she could rent the skies, however, she had to read and sign a rental agreement. In anticipation of an exciting day on the slopes, she quickly read the agreement and signed her name. She was then off to the lift for some action. On her way down the slope she turned and fell hard. Her bindings, which should be set to release the boots from the skis when enough pressure is applied, did not release the boots. Since the bindings did not release, her legs were twisted and she was injured. She sued the ski resort, claiming that they were negligent in failing to set her bindings properly. The ski resort claimed, however, that they were released from liability since she had signed the waiver. The trial court agreed with the ski resort. Veda appealed the case to a higher court.

The higher court, the court of appeals, reversed the decision of the trial court. The court held that the waiver did not release the ski resort from liability for its own negligent acts. The waiver read in part: “I understand that the bindings furnished on said rental equipment are release-type, designed to reduce the risk and degree of injury from falling, and that these bindings will not release under all circumstances and are no guarantees of my safety.” This language does not address whether the ski resort is liable for the actions of its employees in not properly setting the bindings or selecting the appropriate skis. It only gives a general warning and says that there is a possibility that the bindings will not always release. The court therefore held that the ski resort failed to release itself from liability for its own negligent conduct, since this was not stated in the waiver. The case was reversed and remanded.

Another case where the waiver language was at issue was Swierkosz v. Starved Rock Stables.7 In this case the plaintiff, an adult horseback rider, was injured after a rented horse bolted under her, throwing her to the ground. The plaintiff claimed that because the horse’s actions caused her injuries, the stables were responsible under the principles of strict liability. Swierkosz, the plaintiff, had signed a waiver prior to taking the horse. The waiver Swierkosz signed stated in part:

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Section II. Warnings and Assumption of Risk Agreement I/We understand that horseback riding is classified as ADVENTURE

RECREATIONAL SPORT ACTIVITY and that there are inherent elements of risk always present in any such activity, despite all safety precautions. I fully accept such risk, some examples of which are listed as follows:

1. It is not possible for any person or establishment to predict exactly how a horse will behave when it is frightened, angry, or under stress; it may react according to it natural instincts, which are to jump sideways, forward or backward.

2. Upon mounting a horse and taking up the reins, the rider is in primary control of the horse. If a rider falls from a horse to the ground it will be a fall of from 3 to 5 feet and the impact will be according to physical law, possibly resulting in injury to a rider.

Section III. Release Agreement I/We understand and agree that except in the event of this stable’s gross

negligence, I/We accept full responsibility for bodily injury which is sustained by any member of my ground so listed above, on or in relationship to the premises and operations of this stable and/or while riding or handling horses or other animals owned by the same; and I/We hereby, for myself, do hereby release and discharge the owners, operators, sponsors of the premises and their respective servants, agents, officers and all other participants of and from all claims, demands, actions and causes of action for same injuries.

The trial court decided in favor of the defendant stables. The decision was appealed by the plaintiff. The appeals court affirmed the decision of the trial court stating that “where a person rents a horse and understands and expressly accepts (signs the waiver) the risk of using the horse, he cannot recover damages from the person who rented the horse to him . . .” The appeals court further found that the waiver fully described the dangers involved in horse riding. The decision was for the defendant stables.

5. A waiver must be signed voluntarily. As mentioned, for there to be a valid contract, both parties must give

their agreement. The law calls this “mutual assent.” Also, this mutual assent must be voluntary. A voluntary act is one made with freedom of choice. Therefore, a voluntary act must be made without duress. Duress consists of threats or physical force that would make someone do something contrary to their free will. Threats could consist of words intended to scare or embarrass an individual, or physical

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acts that one might perceive as a threat to his physical well being. Physical force could consist of holding someone against his will or injuring him physically. Obviously, waivers signed while under duress are not valid.

Another way for a waiver to be made involuntarily is to take away the participant’s choice. For example, what if a skier is taken to the top of a very steep mountain with the only safe way off being to ski down it? He is then told that he will be given a pair of skis only if he signs a waiver. This lack of choice would defeat the effectiveness of the waiver. A more common example would be when a patient goes to the hospital for emergency surgery. She is given a waiver form to sign before the operation will begin. In such a case, the patient has little choice. Either she signs the waiver or they will not do the necessary surgery. Therefore, as it relates to recreation, always be sure that the participant has a choice whether or not to sign a waiver. Do not ask the person to sign it once participation in the activity has begun, and never use any form of duress to force a participant to sign a waiver form.

6. A waiver must not be against public policy.8

Some courts have held that a waiver can only be against public policy if a public duty is involved. A service that involves a public duty is one that deserves public regulation, is of great importance to the public, and is for some a practical necessity. A provider of a service that involved a public duty, therefore, would stand in such a position of power that the participant would have no choice but to agree to the terms of the waiver. This would create very unequal bargaining power, between the participant, who must have the service, and the provider of that service.

It would therefore be against public policy for the provider of an essential service to take away the participant’s right to sue when he has no choice but to accept the terms of the agreement. The following case illustrates a situation in which the plaintiff loses the argument that the waiver was against public policy. Most recreation providers do not provide services that are a public necessity and therefore would not have waivers that were against public policy.

In the case of Boyce v. West,9 Boyce had enrolled in an advanced scuba diving class at his university. He was able to take this course because he had passed the prerequisite beginning diving course and became certified the previous summer. He signed a release similar to the one he signed for the beginning course that named the university and the Professional Association of Diving Professionals (PADI) as those released from liability.

One of the dives that Boyce participated in while taking the course was a dive in a deepwater lake. During the dive, Boyce and another diver began to run low on air while they were 100 feet below the surface. The instructor noticed this

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and guided them to begin their ascent. As they moved toward the surface, one of the students ran into trouble. The instructor came to his aid and assisted him to the surface. While this was happening, the instructor lost sight of Boyce. He was next seen floating on the surface. He had died from an air embolism that forms in the blood stream when one tries to come to the surface too quickly after a deepwater dive. His parents, as representatives of his estate, sued the university and the instructor. They lost the case in the trial court and appealed.

Boyce’s estate argued that to release the university from liability would violate public policy, so it should therefore not be enforced. The court reasoned that for a public policy to be violated, the activity must be one where a service of great importance to the public is performed; a service that is often a matter of practical necessity for some members of the public. The court concluded that it did not take much to find that scuba diving, though a popular sport in the area, did not involve a public interest. There was no practical necessity for Boyce to take the scuba class. He took the class voluntarily at a private school. Therefore, the court held that upholding the validity of the waiver did not violate public policy, and the decision of the trial court was affirmed.

SECTION 2 THE AGREEMENT TO PARTICIPATE

Even with certain limitations placed upon waivers, recreation providers should still not be hesitant to use them to limit liability with their adult participants. When they are specific, they provide the participant with a strong reminder as to the dangers involved with the activity. That reminder of dangers, accompanied by a signature representing understanding, forms a basis whereby a specific waiver or release invokes the “assumption of risk” defense.

The best instrument to limit the liability for minors (children) is the “agreement to participate.” This document must be specifically worded to cover the risks and dangers involved in the activity in detail. It must also include all the rules of conduct required for safety and organization purposes so the children/ minors and their parents/guardians understand what is expected of them. The “agreement to participate” documents the fact they (the parents) understood the dangers involved in the activity, and agreed to let their children participate and to instruct their children to abide by the rules.10

An effective “agreement to participate” document places the parents in the key role of making decisions on behalf of their children and the responsibility to inform their children of the precautions and rules for participating in the activity.

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In order for the assumption of risk defense to hold in court, the risk of any activity must be described in detail in the agreement to participate.

Recreation managers should understand that it is less risky to provide recreation activities for adult participants than in serving young participants. That may be a legal fact; however, public recreation agencies have an obligation, in both an ethical and social responsibility sense, to serve that segment of the population that is most vulnerable to accidents and that needs to be protected from harm . . . the nation’s youth. The following is an example of a case where assumption- of- risk language succeeded in limiting the liability of the recreation provider.

In Saenz v. Whitewater Voyages, Inc,11 the plaintiff wife of a man who drowned during a whitewater rafting trip on the American River in California brought a wrongful death suit against a commercial river outfitting and guide company, Whitewater Voyages, Inc. The 280-pound, 28-year-old decedent had paid a fee to participate in the raft trip and read and signed a “Release and Assumption of Risk Agreement” (waiver). The release read as follows:

“I am aware that certain risks and dangers may occur on any river trip with Whitewater. These risks include, but are not limited to hazards of and injury to person and property while traveling in rafts on the river, accident or illness in remote places without medical facilities, and the forces of nature.

I hereby assume all of the above risks and, except in the case of gross negligence, will hold Whitewater harmless from any and all liability action, causes of action, debts, claims, and demands of every kind and nature whatsoever which I now have or which may arise out of or in connection with my trip or participation in any activities with Whitewater.”

The agreement further stated it operated as a release and assumption of risk for the participant’s heirs. As part of the orientation process, the decedent was given extensive safety instruction and was fitted with an adult large/extra large life jacket. All trip participants were given the option of either walking around difficult rapids or entering and traversing the rapids on a raft. They were warned of the dangers and the best ways to avoid problems while on the river. The decedent fell out of the raft in a particularly hazardous part of the river and was drowned. The decedent’s wife claimed that Whitewater conducted their operation in a willful and wanton negligent manner and the release that was signed violated public policy. The trial court issued a summary judgment in favor of the defendant Whitewater. Saenz appealed. The appeals court affirmed the summary judgment of the trial court stating that the decedent expressly assumed the risk that led to his death.

A well-drafted and soundly planned waiver can be a useful part of a recreation manager’s risk management plan. The cases and principles discussed in this chapter should give you a good understanding of a waiver’s uses and limitations.

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You are encouraged to read as many waiver cases as possible, particularly in your State of interest, to best understand their use and validity in different situations and sport settings.12

Given what you have learned about waivers, how many flaws can you find in the following waiver that would make it invalid? What are they?

Little Slugger’s Softball League

Team Roster

Sign Your Name in the Available Spaces Below

______________________________________________________

______________________________________________________

______________________________________________________

______________________________________________________

______________________________________________________

______________________________________________________

______________________________________________________

Contract of Indemnification In consideration of City Parks furnishing services and/or equipment to

enable me to participate in softball games and practices while on city property, I

agree to the following:

I fully understand and acknowledge that outdoor recreational

activities have (a) inherent risks, dangers and hazards and such exist in my

use of City Parks equipment and my participation in activities while on City

Park property; (b) my participation in such activities and/or use of such

equipment may result in injury or illness including, but not limited to bodily

injury, disease, strains, fractures, partial and/or total paralysis, death or other

ailments that could cause serious disability; c) these risks and dangers may be

caused by the gross negligence or reckless conduct of the owners, employees,

officers or agents of city Park, the forces of nature or other causes.

Unconscionable acts inherent to but unforeseeable to said game having

arisen from or with same include but are not exclusive to said activity and include

but are not limited to: harmful impacts with rapidly moving spherical projectiles,

inclement atmospheric conditions which serve as a contraindication to human

health and safety, irregular conditions inherent to the loam or turf, or other

dangerous conditions arising therefrom or heretofore on said premises. (d) by my

participation in these activities and/or use of equipment, I hereby assume all risks

and dangers and all responsibility for any losses and/or damages, and agree not to

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sue city park for any injuries which I may incur. I specifically understand that I

am releasing, discharging and waiving any claims or actions that I may have

presently or in the future for the negligent acts or other conduct by the owners,

agents, officers or employees of Camp Greystone, Inc.

I understand that if I do not sign this indemnification agreement I will

lose my right to participate in this softball league and all future leagues in this or

any other sport sponsored by City Parks. I further understand that by not signing

this agreement, I give up my right to ever eat ice cream again for the rest of my

life.

Endnotes

1. Exculpatory clause—a statement clearing another party for alleged fault or guilt. Black’s Law Dictionary, 5th Edition, page 508.

2. Exculpatory clause—a statement clearing another party for alleged fault or guilt. Black’s Law Dictionary, 5th Edition, Page 508.

3. Johnson v. Rapid City Softball Assoc., 514 N.W. 693 (S.D. 1994). 4. Dombrowski v. City of Omer, 502 N.W.2d 707 (Mich. App. 1993). 5. Scott v. Pacific West Mountain Resort, 834 P.2d 6 (Wash. 1992). 6. Sirek v. Fairfield Snowbowl, Inc., P.2d 1291 (Ariz. App.1990). 7. Swierkosz v. Starved Rock Stables, 607 N.E.2d 280 (Ill. App.1993). 8. See Kaiser, Ronald A., Liability and Law in Recreation, Parks, and Sports,

page 240, (1986), Prentice-Hall, Inc., Englewood Cliffs, N.J. 07632, page 92.

9. Boyce v. West, 862 P.2d 592 (Wash. App.1993). 10. van der Smissen, Betty, National Safety Network Newsletter Volume 1,

Number 4, March 1985. 11. Saenz v. Whitewater Voyages, Inc., 226 Cal. App.3d 758 (1st Dist.1990) 12. For an excellent discussion of waivers in sport and recreation settings,

see Cotton & Cotton (2000), Waivers & Releases, IHRSA: Boston.

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