It’s not unusual for those vacationing in Florida to seek adventure in trying something new, be it parasailing or scuba diving or even chancing the latest roller coaster ride. Most places that offer these activities require patrons to sign a liability waiver, also referred to in legal circles as an assumption of risk.
An assumption of risk holds that a participating party knowingly and voluntarily accepted the risk of a particular activity. Sometimes risk can be implied, but when a person signs a waiver, it’s considered to be expressly communicated. Successfully establishing assumption of risk will may allow a defendant to evade liability if a person is injured.
However, our West Palm Beach personal injury attorneys also know that just because a person signs a waiver doesn’t necessarily mean they don’t have a case. There are many, many cases in which liability waivers are poorly-written, ambiguous and broad. In other cases, the contract may prompt people to sign away the right to sue in the event of intentional negligence. There have als0 been certain instances where it seems not enough was done to bring to patrons’ attention the gravity of what they were signing. In these situations, a judge may find the agreement is “unconscionable,” and refuse to enforce it.
This was the ruling sought by the plaintiff in the recent case of Donahue v. Ledgends, before the Alaska Supreme Court. Here, the plaintiff signed up for a rock-climbing class at a facility that advertised the activity as “safe” and “risk-free.”
The plaintiff had a fairly athletic background, and assumed this would be a fun challenge. Prior to the first class, she was asked to sign a waiver of liability. The document contained the general risks of rock-climbing (i.e., falling, serious injury and even death), and also detailed several specific risks inherent in the activity. The contract also indicated that while instructors strive for safety, they “are not infallible” and may be ignorant of the participants’ skill levels. The document contained large, bold letters indicating the patron would assume all risks of injury associated with the activity.
During the second class, the plaintiff fell while following an instructor’s guidance navigating down from the rock wall. She broke her shin bone in several places.
She later filed a lawsuit, which was dismissed on summary judgment in favor of the defendant, who cited the waiver of liability. The plaintiff appealed, saying the agreement was unconscionable. However, the appellate court and later the state supreme court affirmed.
The courts indicated the waiver should be upheld because it met the following criteria:
- It was specifically and clearly set forth;
- It was specifically set forth using the word “negligence”;
- It was presented to the patron in a way that was clear, with simple language and capital letters;
- It did not seek to exculpate the defendant from negligence unrelated to the inherent risks;
- It did not misrepresent safety or maintenance standards.
The release had specifically stated instructors might give inadequate warnings or instructions. The court rejected the plaintiff’s assertion that she did not understand the risks involved based on the appearance and presentation of the release. Even though the court acknowledged the plaintiff’s assertion that she had not carefully read the document before signing it, this was not grounds to invalidate the agreement.
If you have been injured, contact the Hollander Law Firm at (888) 751-7770 for a free and confidential consultation. There is no fee unless we win.
Donahue v. Ledgends, Aug. 1, 2014, Alaska Supreme Court
Brown v. North Florida Surgeons – Medical Arbitration Agreement Deemed Invalid, Aug. 8, 2014, West Palm Beach Injury Lawyer Blog