Many recreational activities may be accompanied by a certain level of inherent risk for participants. Beyond that, the company offering the experience to participants may require a signature on a waiver of liability.
States have different interpretations about whether companies should be allowed to evade liability simply with a signature on a waiver, and what kind of criteria waivers have to meet in order to be valid.
North Carolina law does allow a person to “effective bargain against liability for harm caused by his ordinary negligence in the performance of a legal duty” (Strawbridge v. Sugar Mountain Resort, Inc., W.D.N.C., 2004). The courts have interpreted this to mean that waivers of liability are going to be upheld unless they violate a statute, are gained through unequal bargaining power or there are contrary to a substantial public interest (Wagoner v. Nags Head Water Sports, U.S. 4th Circuit Court of Appeals, 1998).
So where liability waivers exist, your Charlotte personal injury lawyer is going to face some challenges. That doesn’t necessarily mean a case is unwinnable, but it does mean you’re going to need a law firm with extensive experience.
In the recent case of Ketler v. PFPA, the Delaware Supreme Court was asked to consider the viability of a waiver signed by a gym member who was injured while using exercise equipment. He alleged the gym was negligent and thus liable.
Defendants argued the lawsuit was barred because plaintiff had signed a release of liability, allowing a party to avoid liability for its own negligence. The law in that state says so long as the release isn’t unconscionable, against public policy or ambiguous, the the waiver will be legally recognized.
The superior court sided with defendants and granted summary judgment.
Plaintiff appealed, arguing the waiver was ambiguous, unconscionable and against public policy. The Delaware Supreme Court reviewed the case.
They learned plaintiff joined the gym in 2010 for $10 monthly, and at that time, signed a waiver indicating he understood use of the facility involves possible risk or injury to himself and/or his guest and that possible risks ranged from minor injuries to death. He further signed away any claims to defective equipment, which the company purchased or leased, but did not manufacture.
Three years later, plaintiff was injured when at defendant’s facility, on a seated rowing machine, a cable broke.
Justices have previously recognized the release of prospective negligence is valid, assuming it meets certain criteria.
Here, the court determined first the language in the release was both clear and unequivocal.
The contract was also not unconscionable, as such a finding usually involves a situation in which there may be not just a disparity in bargaining power, but there is an absence of meaningful choice. If the signing person can simply walk away from the contract, that is not a deprivation of a meaningful choice. That was the situation here, so the contract wasn’t unconscionable.
Finally, the contract wasn’t a violation of public policy, which running afoul of a state statute or interest. Here, there was no statute identified that might bear on the release validity. Plaintiff had argued as a property owner, defendant had legal duty to keep a safe property for business invitees. This is true under premises liability law, but the general release by its very nature releases a party from possible liability that is otherwise imposed by the law. So plaintiff would have needed to show the public policy involved disapproves of the release itself.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Ketler v. PFPA, Jan. 15, 2016, Delaware Supreme Court
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