It seems that nearly every business wants you to sign a waiver before participating in activities. Gyms, trampoline parks, water parks and bounce houses all require you to sign a waiver before you exercise, jump or ride the water slides.
But if you are injured while doing these activities, do these liability waivers hold up in court? Can a business truly contract away negligence? The answer is, “It depends.” Whether you are the participant in the activity or the one requiring a release to be executed, the language of the release – in particular, the scope of activities it includes – is critically important.
Generally, releases and waivers are not favored by courts and will be strictly construed against the party seeking to enforce them. Despite not being favored, there are several instances where Courts have upheld liability waivers. In these cases, the Courts closely examined the language of the waivers and held that the activity was within the scope contemplated by the waiver.
In one such case, the parents of a student studying abroad sued a university after their son drowned in a foreign country. The parents attempted to argue that the beach trip was beyond the scope of a study abroad program, but the Court disagreed. The waiver included “any loss, damage, or injury, including death . . . as a result of my traveling to and from, and participation in this activity.” The Court held the beach trip was a sponsored event by the program.
Even if the activity is determined to be within the scope of the waiver, the Court will also determine whether the waiver violates public policy. Specifically, if an activity is “highly regulated,” waiving liability may violate a public interest, and the Court may strike down a waiver in such an instance. North Carolina Courts have determined that a ski area operator and a motorcycle safety instructor fall within the “highly regulated” classification and are unable to waive ordinary negligence by contract.
If you offer activities for which participants should sign waivers, the following tips can help ensure your waiver holds up in Court. It is always recommended that legal counsel prepare or at least review your waiver, but the following is intended as a guide for what Courts look at when determining whether to enforce a waiver:
Cece Nunn - Jul 22, 2019
Johanna Cano - Jul 22, 2019
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