Signing A Waiver Is Not Ironclad
Brian O Sutter
Premises Liability
Many recreational activities that people undertake always assume a certain amount of acceptable risk. Going on a hike, for example, means people are willing to accept the risk of getting lost, stumbling and becoming injured, or even encountering wild animals and getting into an altercation. People who swim know there’s a certain amount of risk of drowning, but are willing to take the chance.However, some activities present a much higher risk—especially of serious injury—than other activities.Skydiving can bring with it some various serious injuries, sometimes even death, because people are willingly throwing themselves out of an aircraft.
In these more risky recreational activities, sometimes the companies that offer these activities will not allow customers to participate unless they sign a waiver. That waiver effectively absolves the company of any legal responsibility should an accident occur. But is it really as open and shut a case like that? Not Always.
The Grouse Mountain Incident
In 2016, north of the Canadian city of Vancouver, 20-year-old Australian Jason Apps went snowboarding at Grouse Mountain and attempted to negotiate the park’s “XL Jump.” He failed to land safely and became a quadriplegic as a result. He claimed that his injury was the result of negligence on the part of the park, and the park responded that it had an exclusion of liability due to the presence of signs and a waiver that negated any responsibility on the part of the park.
That wasn’t the end of it. Years later, Apps appealed that ruling and his appeal was upheld because the grounds for dismissing the case were nebulous. There was room for discussion about whether a property’s negligence could legally be included as part of a waiver, and now the case has been reopened.
The Waiver Principle
Waivers are usually drafted for activities where injuries and the severity of injuries is much higher than usual. This is why people riding a rollercoaster, full of safety mechanisms, don’t have to sign a waiver to board the ride. However, someone who is bungee jumping, where they are leaping off a cliff, bridge, or another high point with what amounts to a rubber band preventing them from impacting the ground, often must sign a waiver. In the case of bungee jumping or skydiving, far fewer safety mechanisms exist to protect participants if something goes wrong.
Waivers, in this case, theoretically prevent accident victims from taking legal action against a business if a “reasonable injury” or “unforeseen accident” occurs. That definition varies from one activity to the next. If, for example, someone is skydiving, ignores skydiving safety protocol, and pulls the parachute long after the recommended time to do it, the waiver would exclude the skydiving company from a lawsuit, even the skydiver is injured. In this case, the skydiver did not follow all the safety recommendations. If multiple witnesses confirm the skydiver ignored the warnings to pull the parachute, the injury would have a difficult time going to court.
Negligence Can Still Count
However, the presence of a waiver does not absolve a company from all injuries. If a business has acted negligently, then, even after a waiver is signed, there’s still room to challenge the legitimacy of that waiver.
In the skydiving example above, if the skydiving company had forgotten to pack a parachute, and gave an empty pack to the customer, this would result in death. Once the investigation was concluded, and it is evident that the company had given the victim an empty parachute pack, negligence has occurred. Even if the accident victim had signed a waiver, direct negligence on the part of the company could not be protected by a legal document.
Premises Liability Is Always In Effect
Even with the presence of a waiver, every business has a legal responsibility known as premises liability. This means that the property owners or managers of the property are responsible for ensuring a safe environment for customers. If they notice something that might create a risk, but fail to do something about it, that is considered negligence if an injury arises as a result.
In the case of extreme sports like skydiving, snowboarding, and others, this means exercising due care to make sure that equipment is in good condition and that, if possible, the environment is maintained. If there is any clear evidence that an injury occurred due to neglecting these safety responsibilities, then that is considered premises liability.
Anyone that is the victim of premises liability, especially with compelling evidence, should talk to a personal injury lawyer about injuries, like slips, falls, and other mishaps, that are classed as premises liability. Just because a waiver has been signed, that does not absolve a business of negligence, and there are still legal options.