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Do Waivers Work?
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Thursday, 10 March 2011 15:28
The following excerpt from the book Managing Risk is subject to copyright laws. Reproduction of this material in anyway is forbidden without explicit written permission from the publisher.

The courts have held in cases that properly prepared and presented releases of liability are binding.  This is consistent with the principle in contract law that a party is bound by the document in the absence of fraud or misrepresentation.  There have been many cases in which the courts have found waivers valid and sufficient to exonerate defendants from liability even for alleged negligence.
 
Early adventure cases include Delaney v. Cascade River Holidays Ltd in 1983, Dyck v. Manitoba Snowmobile Assn. Inc. in 1985 and Karroll v. Silver Star Mountain Resorts in 1988.  More recent high-profile instances include Ochoa v. Canadian Mountain Holidays Inc., the 1996 case based on the avalanche deaths of nine clients while heli-skiing and the 2009 Alberta horse riding case of Van Hooydonk v. Jonker.


It is no longer correct to say that waivers are not worth the paper they are printed on. 
The Supreme Court of British Columbia in Karroll v. Silver Star Mountain Resorts offered some insight as to what a properly crafted waiver would look like.  The court considered that a release which is short, easy to read, contained no fine print, one page in length, and headed in capital letters “RELEASE AND INDEMNITY – PLEASE READ CAREFULLY” would reveal to a reasonable person that this was indeed a legal document intended to release the defendants from liability.

That is not to say however that waivers ought to be viewed as a bullet proof defense against a lawsuit!
Because a waiver acts as a complete bar to recovery, courts are often not prepared to uphold releases of liability in motions for summary judgment.  This means that the courts would determine whether or not the waiver is valid at trial.  Recent examples include Brown v. Blue Mountain Resort Ltd, the indoor rock climbing case of Stein v. Exec-U-Fit Personal Fitness Training Centres Inc. and the obstacle course case of Downs v. Georgian College.  In instances such as these where the judge did not make a summary judgment, plaintiffs and defendants often are incentivized to settle out of court and avoid the cost and unpredictability of a trial.

Further, it is highly unlikely that parents or guardians can sign a waiver on behalf of their child.  The Ontario High Court of Justice in M. v. Sinclair in 1980 described an argument in support of a parent’s right to waive a child’s claim as tenuous and the Law Reform Commission of Manitoba in 2009 described the validity of parental waivers as doubtful.

Canada vs. The United States
In Canada, the outdoor industry looks to the courts to uphold releases of liability under contract law. The US experience is different. The risks assumed by the participant play a more important role than in Canada.  Assumption of those risks inherent to the activity may act as a bullet proof defense to a defendant while in Canada it is merely embedded as part of a waiver.  There is more emphasis in the US on the participant’s assumption of the risks involved as a defense than their waiving their contractual rights to sue.

Having said that, however, there is a patch quilt appearance to the way in which every state’s courts deal with outdoor or adventure cases.
 
Each state’s laws are written differently so the treatment by their courts is different from one another.  Some states even have statutes which immunize or otherwise protect their equestrian or ski industries. Despite such differences, there are some broad-brush similarities.
 
Examples where American courts have said that the plaintiff’s assumption of the risks inherent to the activity denied them recovery include the 2004 gym climbing case of Holbrook v. McCracken and the 1999 gym climbing case of Mankowski v. Mieras.  In Holbrook, the Court of Appeals of Ohio held that the Holbrook’s injury was due to an inherent risk of climbing, i.e. falling, while the Michigan Court of Appeals in Mankowski ruled that belayer negligence is an inherent risk to be assumed.

American courts have, on occasion however, upheld properly constructed and presented waivers.  Examples include the 1993 Illinois horse riding case of Swierkosz v. Starved Rock Stables, the 2003 New York bouldering case of Lemoine v. Cornell University, and the 2009 Colorado skiing case of Robinette v. Aspen Skiing Company, L.L.C.
 
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