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Legal Issues
Mar 11, 2019

Liability Waivers: Can You Contract Away Negligence? 

Sponsored Content provided by Deedee Gasch - Attorney, Cranfill Sumner & Hartzog LLP

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:

  • Be specific and include the activities intended to be covered by the waiver and who the waiver is intended to cover.
  • Make sure the waiver is conspicuous and not buried within a larger document where it is difficult to see.
  • Parents should sign waivers on behalf of a minor. 
This does not constitute legal advice. Please seek counsel from a legal professional to assess your specific situation.

Deedee Gasch has over a decade of experience litigating catastrophic claims involving serious injury or death. While Deedee’s practice is primarily focused on the defense of premises liability, trucking and commercial vehicle accidents, and medical malpractice, she also has a wide range of civil litigation experience. She spent approximately half of her career representing injured plaintiffs before returning to her first love of civil litigation defense work. This experience on both sides of a case uniquely situates her in negotiations and at trial if settlement is not possible. Deedee is a third-generation Tar Heel and attorney, following in the footsteps of her grandfather, a North Carolina Resident Superior Court Judge (deceased), and her father, a career trial lawyer. She has dual degrees in Journalism and Political Science and earned her law degree cum laude from Florida Coastal School of Law in Jacksonville, Florida, where she attended on a prestigious merit based scholarship. She is licensed to practice law in both North Carolina and Florida. 

 

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