Posts Tagged: waiver

Waivers 101

February 25, 2014

John Wolohan
Professor of Sports Law
Department of Sport Management
Syracuse University

INTRODUCTION
There is perhaps no greater issue in the sport, recreation and health club industries than the use and interpretation of waivers. Considering how important waivers are, and how much they are being used, it is amazing that there is still such a great deal of misunderstanding over their legal value and the protection they can provide. This article attempts to demystify waivers and provide readers with a basic understanding of how they work.

Perhaps, first, and foremost, it is important to note that a waiver is a contract entered into between the user of the recreation or health club services and the service provider. In the contract, the user agrees to relinquish his or her legal right to sue the service provider in the event that the user is injured as a result of the provider’s negligence. In exchange for giving up their legal right to sue the service provider, the service provider agrees to allow the individual to use the recreation and health club’s services and facilities. It is important to note that as a general rule the waiver will only protect the service provider from liability for ordinary negligence and will not protect the service provider or its employees from gross negligence or reckless misconduct.

Second, the legality of a waiver is determined by state, not federal law, and therefore its validity will vary depending upon the state. Therefore, just because a recreation or health club facility uses a waiver legally in one state that does not mean that it will be valid in another state. It should be noted that in at least 43 states, a well-written, properly administered waiver, voluntarily signed by an adult, can be used to protect the recreation or sport business from liability for ordinary negligence by the business or its employees. It should also be noted that in three states: Louisiana; Montana and Virginia all waivers will be void since the courts have found them to violate public policy.
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The Power of the Waiver:

April 17, 2013

Loychuk v. Cougar Mountain Adventures Ltd.

Bruno De Vita
Alexander Holburn Beaudin + Lang LLP

Waivers and releases of liability have been proven to be an effective risk management tool
in avoiding liability, particularly for entities that are regularly engaged in the area of sport
and recreation. A recent decision of the British Columbia Court of Appeal in Loychuk v.
Cougar Mountain Adventures Ltd., 2012 BCCA 122 demonstrates just how powerful a tool
waivers can be and, when properly drafted, how resilient they can be to challenges of
unfairness and unconscionability.

The case involved two plaintiffs, Loychuck and Westgeest. They were injured when
Westgeest was allowed to be sent down a zipline by Cougar Mountain employees at a time
when Loychuck, who had immediately preceded her, was suspended on the line before
reaching the bottom. Although the guides employed by the operator were in communication
by walkie-talkie, the individual directing Westgeest was not advised that Loychuck had
become suspended in mid-course. Westgeest was allowed to proceed down the line and
came into collision with Loychuck at considerable speed and without any ability to stop
herself or slow her descent. The operator’s employees were clearly negligent and so the
only defence available to the operator was the waiver of liability that each of the plaintiffs
had signed prior to the commencement of the activity.
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