Archive for the ‘Waiver and Release’ Category

Into the Void – Claims of Sixteen-Year-Old Skydiver Not Barred by Waiver and Release (OK)

January 4, 2016

Wethington v. Swainson (Oklahoma)

Accompanied by her parents, a sixteen-year-old girl went to the defendant to learn how to skydive.  As part of the registration process, the girl signed a “Registration Form and Medical Statement” that included a disclaimer near the bottom referring to the serious risks associated with skydiving.  The girl participated in an instruction course, which included fours hours of training.  In connection with the instruction course, the girl and her parents signed a detailed “Agreement, Release of Liability and Acknowledgement of Risk” form, which included numerous exculpatory provisions (the “Release”).  The Release also included a “Ratification by Parent/Guardian,” which was signed by both of the girl’s parents.  When she jumped from the plane, the girl’s parachute malfunctioned, causing her to spin rapidly toward the ground.  She landed at a high speed and impact, causing her to sustain serious injury.

The girl and her parents sued the defendant, and the defendant filed a motion for summary judgment, arguing that the Release barred the plaintiffs’ claims.  The U.S. District Court for the Western District of Oklahoma granted the motion in part and denied the motion in part.  Reviewing Oklahoma law and the terms of the Release, the Court concluded that “the Release states in clear and unequivocal terms the intention of the parties to excuse Defendant from liability caused by Defendant’s negligence, equipment failure, or inadequate instruction.”  However, the Court acknowledged that the minor had voided the Release due to her status as a minor, and the Court noted that “[u]nder Oklahoma law, a minor’s right to rescind a contract is unaffected by the approval or consent of a parent.”

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Root of the Problem – Claims of Woman Injured on Segway Tour Barred by Exculpatory Agreement (CA)

November 9, 2015

Lamb v. San Francisco Electric Tour Company (California)
(not published)

The plaintiff and her husband went to Golden Gate Park with their son and took a guided tour of the park on individual Segway transporter vehicles.  The tour was operated by the defendant.  Plaintiff was injured on the tour and filed a lawsuit against the defendant, alleging vehicle negligence, general negligence, and common carrier negligence.  The defendant filed a motion for summary judgment based on the express waiver provisions of an agreement signed by the plaintiff, the express assumption of the risk provisions of that same agreement, and the primary assumption of the risk doctrine.  The trial court granted the motion, finding that the exculpatory agreement signed by the plaintiff was enforceable and contemplated the circumstances of the accident.  Plaintiff appealed.

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Snowmobile Wins Again – Claims of Injured Ski Racer Survive Motion Based on Waiver and Assumption of Risk Statutes (CO)

October 29, 2015

Schlumbrecht-Muniz v. Steamboat Ski and Resort Corp. (Colorado)
(trial court disposition)

Plaintiff was a member of the Sarasota, Florida Ski Team.  She traveled to the Steamboat Springs Ski Resort in Colorado to participate in ski races.  After finishing her second race and exiting the race course, plaintiff skied down a trail and headed toward the ski lift.  She attempted to ski past the lift to a picnic area to meet up with other racers.  However, she collided with a snowmobile that was parked near the lift.  Plaintiff sued the ski resort alleging (1) common law negligence in parking the snowmobile in a dangerous, high-traffic area, and (2) negligence per se under the Colorado Ski Safety Act (“SSA”) by failing to mark and pad the snowmobile.

The defendant moved for summary judgment, arguing (1) that the exculpatory clause contained in the race participation agreement signed by the plaintiff prior to her participation barred the plaintiff’s claims, (2) the common law negligence claim was barred by the SSA (“no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing”), and (3) the negligence per se claim failed because the SSA does not apply under the circumstances (i.e., with regard to a parked snowmobile).

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No Sympathy – Claims of Injured Passenger in Go Kart Barred by Assumption of Risk; No Product Defect (NY)

October 22, 2015

Garnett v. Strike Holdings, LLC (New York)

The plaintiff rode as a passenger in a two-seat go kart driven by her then boyfriend.  While driving on the track, they were allegedly bumped twice by other go karts, allegedly causing the plaintiff to suffer injuries, including “reflex sympathy dystrophy.”  Plaintiff sued the operators of the indoor recreational facility, alleging negligent and defective design, strict products liability, failure to warn, and breach of warranty.

The defendants filed a motion to strike the products liability claim.  However, the trial court denied the motion finding (1) that [the operators] leasing and rental of the go-karts could support the inference that [the operators] had placed the go-karts within the distributive chain,” and (2) the operators’ “waiver form purporting to contain an “express assumption of risk, waiver indemnity and agreement not to sue” was void as against public policy and unenforceable by reason of” New York General Obligations Law Section 5-326.  The parties proceeded with discovery.

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Bitten – Questions Certified to Supreme Court on Huge Jury Verdict for Student Stricken by Illness on School Tour (CT)

October 16, 2015

Munn v. Hotchkiss (Connecticut)

A fifteen-year-old freshman at a private boarding school participated in a month-long summer program in China organized by the school.  Prior to participating in the program, the school sent the student and her parents a packet outlining the activities and a set of legal forms requesting that the parents waive legal claims against the school.  The school also sent medical advice regarding the trip, including a link to the Centers for Disease Control and Prevention (“CDC”) webpage and a note that the school’s infirmary could “serve as a travel clinic.”  However, the CDC website reference was incorrect and the infirmary was unable to provide independent medical advice.  The school also later sent an itinerary, a packing list (including a general reference to “bug spray”), and a handbook on international travel.  However, there were no specific warnings about insect-borne diseases where health risks were mentioned in the materials.

During the program, the students went on a weekend excursion without any bug sprays warnings being given.  After walking through trees and brush, the student had numerous bug bites and an itchy welt on her left arm.  Ten days later, the student awoke with a headache, fever, and wooziness.  Her condition deteriorated and she was taken to the hospital.  Eventually, the student’s parents traveled to China from the United States to be with her in the hospital.  She was severely ill and partially paralyzed, and was airlifted back to New York.  The student was diagnosed with tick-borne encephalitis (“TBE”), a viral infectious disease that affects the central nervous system.  She lost the ability to speak and lost cognitive function, although she managed to live a functional life, finishing high school and attending college.

The student and her parents filed a diversity action in federal court against the school, alleging that the school was negligent in the planning and supervision of the trip.  Plaintiffs claimed that the school failed to warn them about the risks of viral encephalitis and failed to provide her with protective clothing, bug spray, or vaccinations.  They also alleged that the school failed to provide medical personnel on the trip and failed to establish procedures for medical emergencies.  The defendant school argued that the “Agreement Waiver, and Release of Liability” form that was signed by the student’s parents prior to the program precluded liability, but the District Court excluded the document, finding that its language was ambiguous and that it was contrary to public policy under Connecticut law.

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Beyond Control – Woman Injured on Costa Rican Bicycle Tour; Claims Survive Motion to Dismiss (CO)

October 15, 2015

Steinfeld v. EmPG International, LLC (Colorado)
(trial court disposition)

A woman fell off her bicycle during a bicycle your vacation in Costa Rica.  She and her husband filed a lawsuit against the bicycle tour company.  The lawsuit was filed in Pennsylvania where the plaintiffs resided, but the Pennsylvania District Court held that is lacked personal jurisdiction over the defendant tour company that was based in Colorado.  The defendant filed a motion to dismiss based in large part on the assumption of risk and waiver of liability forms (“Releases”) signed by the plaintiffs prior to their participation in the tour.  However, the Colorado District Court applied Colorado law (as having the “most significant relationship” to claims), denied the motion, and allowed the case to proceed to discovery, finding that the Releases did not bar all of the plaintiffs claims.  The Court explained:

“A waiver implicitly or explicitly is grounded on warranties of fitness, and assumption of risk can only take place when the risk is inherent and clearly foreseeable.  The Complaint in this case abounds with allegations of misrepresentations and abandonment of good faith attempts to fulfill the obligations of the contract.”

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Unintended Consequences – Claims of Woman Injured on ATV Tour Not Barred by Prior Jeep Tour Waiver (CO)

October 1, 2015

Soucy v. Nova Guides, Inc. (Colorado)
(trial court disposition)

Plaintiff and her family, including her mother and two younger sisters, were vacationing in Vail, Colorado.  On July 9, 2012, plaintiff went on jeep tour, and on July 11, 2012, she went on an ATV tour.  Both tours were operated by the defendant tour guide company.  During the ATV tour, plaintiff’s ATV overturned, causing her personal injury, and plaintiff thereafter filed a negligence lawsuit.  The defendant filed a motion for summary judgment asserting that the plaintiff’s claims were barred by a waiver of liability that the plaintiff has signed prior to her participation.  However, the U.S. District Court ultimately held that there was a triable issue of fact as to the existence of a waiver of liability as between plaintiff and defendant in relation to the ATV tour.  The facts are a little convoluted.

Prior to participating in the jeep tour on July 9th, plaintiff signed a “Lease Agreement and Waiver of Liability” (the “Waiver”) on which a handwritten check mark appeared next to “Jeep tour.”  Nothing was marked next to the other options on the agreement, which were “ATV,” “Mtn. Bike,” and “Hiking.”  However, plaintiff did not sign another Waiver prior to taking part in the ATV tour on July 12th.  Plaintiff’s mother signed a Waiver for the ATV tour, and she listed plaintiff and her sisters as participants in the tour, but the mother did not have the capacity to sign the Waiver for the ATV tour on plaintiff’s behalf.

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Capped and Dismissed – Arbitration Provision with Damages Cap in Zip-Line Waiver and Release Enforced (VT)

September 30, 2015

Littlejohn v. Timberquest Park at Magic, LLC (Vermont)
(trial court disposition)

The seventy-six year old plaintiff was severely injured while participating in an adventure zip-line course in Vermont.  Plaintiff had never participated in an adventure course before.  Despite having received instruction from the zip-line facility, the plaintiff mistakenly attached his equipment to a guy wire, thinking it was a zip-line cable.  While descending, he ran into a tree that anchored the other end of the guy wire.  He sued the zip-line facility alleging that it negligently designed, constructed, and operated the course.

Plaintiff’s friend had purchased their tickets for the adventure course online through the facility’s website.  Plaintiff arrived at the facility, and they were presented with a “Release of Liability, Waiver of Claims, Indemnification, and Arbitration Agreement” to sign.  Plaintiff contended that the website had not warned them that they would be required to sign a liability waiver in order to participate in the activities.  The agreement was presented in digital format on an electronic device, and plaintiff was instructed to read and sign it electronically.  The agreement specifically included a provision pursuant to which the plaintiff agreed to submit any claims in excess of $75,000 to binding arbitration.  Alternatively, if plaintiff filed a lawsuit in court, the agreement provided that plaintiff agreed that his damages would be capped at $75,000.  The agreement further attempted to require the arbitration panel or court (as applicable) to decide the enforceability of the agreement as a “threshold matter.”

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Scuba Tragedy – Diver Drowns; Releases Enforceability to Protect Diver Association from Ordinary Negligence (HI)

September 3, 2015

Hambrock v. Smith (Hawaii)
(trial court disposition)

Plaintiff, her husband, and their children went on a recreational scuba diving excursion that departed from Hawaii.  During the excursion, plaintiff’s husband died by drowning.  Plaintiff brought a lawsuit against numerous defendants, including (1) the dive guide on the scuba excursion (“Smith”), (2) the co-captain of the dive vessel (“McCrea”), (3) a dive training organization and an association for diving instructors and dive centers in which both the Smith and McCrea were members (“PADI”), and (4) the corporate entity out of which the Smith and McCrea ran their scuba excursions (“HSS”).  The lawsuit alleged negligence (all defendants), gross negligence (all defendants), and vicarious liability on theories of apparent agency, agency by estoppel, and maritime joint venture (against PADI).

PADI filed a motion seeking summary judgment as to both the negligence claims and the vicarious liability claims against it (i.e., all claims except gross negligence) based on the liability releases signed by the plaintiff and her family prior to the scuba diving activities.  In addition to opposing PADI’s motion, the plaintiff also filed a motion for partial summary judgment of her own, challenging the enforceability of the releases.  In addressing the enforceability of the releases, the U.S. District Court for Hawaii reviewed both admiralty law and Hawaii state law.

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“Baled” Out – Woman Trips on Stairs at Farm; Indemnity Agreement in Release Contrary to Public Policy (CT)

September 2, 2015

Squinobal v. Zenko (Connecticut)

Plaintiff was injured when she slipped and fell on wooden stairs located on the defendant’s premises.  The defendant operated a farm and equestrian facility.  At the time of the incident, plaintiff was carrying a bale of hay and seed to a feed trailer.  Plaintiff filed a complaint alleging that her injuries resulted from the negligence and carelessness of the defendant.  The defendant filed a counterclaim based on a “Lesson, Horse Rental, and Arena Use Release” document (“Release”) signed by the plaintiff in order to ride horses at the facility.  The defendant then filed a motion for partial summary judgment on the ground that plaintiff had a duty to defend and indemnify the defendant under the terms of the Release. (more…)