If you have ever participated in a high-risk activity – think sky-diving or rock-climbing – you were almost certainly asked to sign a “waiver of liability,” releasing the organizer and/or property owner from any claims of negligence relating to that activity.
These waivers, also known as “exculpatory clauses,” are becoming increasingly popular, even for participation in seemingly innocuous activities, such as a gym class or a charity 5K.
In South Carolina, these agreements may be enforceable as valid private contracts, but only if the language is sufficiently specific and the negligence asserted does not stem from a reckless or intentional act by defendant. It’s also worth noting the South Carolina Supreme Court, in its 2003 ruling in Fisher v. Stevens, established exculpatory contracts are not favored by the law, and will be strictly construed against the party relying thereon.
Our Rock Hill injury lawyers know such agreements are unenforceable as a matter of law when:
- The language is uncertain or ambiguous
- The contract fails to clearly inform plaintiff of all claims waived due to defendant’s negligence
- The language is overly-broad or sufficiently vague
While there is a significant burden of proof threshold defendants must meet in order to enforce these contracts, there is no guarantee such contracts will be easily overcome.
In a recent out-of-state case, plaintiff was injured during a motorcycle class accident, where instructors allowed inexperienced riders to venture on icy, slippery pavement. As a result, plaintiff fell with the motorcycle landing on her leg.
According to plaintiff in DeCormier v. Harley-Davidson Motor Co. Group, Inc., the instructors’ actions, as well as those of the property owners who failed to address the dangerous conditions on-site, accounted to gross negligence that voided the exculpatory contract.
However, the Missouri Supreme Court disagreed, finding the state did not recognize degrees of negligence. The standard there is a bit stricter. South Carolina does, in fact, recognize degrees of negligence and tends to take a harder line against liability waivers.
Still, the South Carolina Supreme Court has ruled in favor of defendants on these issues as well. In 2005, in the case of McCune v. Myrtle Beach Indoor Shooting Range, Inc., the court sided with a gun range operator who organized paint ball sessions on site. Plaintiff in that case signed a waiver of liability prior to participating. Neither plaintiff nor instructor attempted to tighten a mask, which did not fit properly, before she started playing. During the game, plaintiff was struck in the eye, suffering permanent injury. However, the court found the liability waiver enforceable because plaintiff expressly assumed the potential risks before playing, and the waiver was neither vague nor overly-broad.
The bottom line is while liability waivers are not impossible to overcome, it is important for anyone who signed one prior to suffering injury to consult first with an experienced injury lawyer. It will take someone with extensive knowledge and proven success to challenge these contracts in court.
Contact our South Carolina personal injury lawyers at Lee Law Offices today by calling 800-887-1965.
DeCormier v. Harley-Davidson Motor Co. Group, Inc., Nov. 12, 2014, Missouri Supreme Court
More Blog Entries:
One Year Later: North Carolina State Fair Accident Victims Still Recovering, Oct. 28, 2014, Rock Hill Injury Lawyer Blog