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Liability Waivers: What You Need to Know

by | Oct 25, 2021 | Catastrophic Injuries, Liability Waiver, Personal Injury

Liability Waivers: What You Need to Know

Many businesses, from ski resorts, rock climbing gyms, trampoline parks, and amusement parks, attempt to prevent future lawsuits through the use of liability waivers. Customers and visitors are often required to sign liability waivers as a condition of participation or entry.[1] These contracts are generally intended by the business to provide that the customer gives up his or her right to sue the business in the event that the customer is injured on the premises or in the course of the business’s activities.

However, liability waivers are not always as simple as they appear. If you have experienced a personal injury and are concerned about a liability waiver, contact an attorney to help you determine whether the waiver is enforceable.

What does a liability waiver/release look like?

Liability waivers vary in length, content, and form. Some liability waivers are limited to a single sheet of paper while others are multiple pages long. Many businesses print a short liability waiver on the back of your entrance ticket or receipt.[1] Here is an example of what a common waiver on the back of a ticket may look like:

I hereby release [Business name] and its owners, agents, and employees from any and all liability for damage and injury to myself or to any person or property resulting from the use of this equipment, accepting myself the full responsibility for any and all such damage or injury which may result. I understand that there are inherent risks involved in [activity name] and that injuries are a common and ordinary occurrence of participating in [activity name]. I assume all risk of personal injury or loss or damage to property as a result of all the inherent risks of [activity name].[2]

Do North Carolina courts enforce Liability Waivers?

The answer, as with many legal questions, is “it depends.” Determining whether a given liability waiver is enforceable is a complicated question that depends on the specific facts of the case.

North Carolina courts “strictly construe” liability waivers, meaning that if the contract does not have language that specifically releases the business from liability for that type of injury, the contract will not be enforced.[3] Therefore, the exact language of the waiver itself is crucial when determining whether a court is likely to enforce the release of liability.

Even if the language of the waiver covers the type of injury you suffered, North Carolina courts will not enforce a waiver if it violates state law, is “gained through inequality of bargaining power,”[4] or is “contrary to a substantial public interest.”[5] Additionally, liability waivers are contracts, and as such their interpretation is governed by the same rules that control contract interpretation.[6] Contracts cannot be enforced if a party has engaged in “fraud, coercion, undue influence, misrepresentation, inadequate disclosure,” or other activity that makes enforcement of the contract “unconscionable.”[7] Additionally, as a general rule, minors do not have the ability to execute contracts. For that reason, a liability waiver that was executed by a minor will not be enforceable.

According to the Supreme Court of North Carolina, “a party cannot protect himself by contract against liability for negligence in the performance of a duty of public service, or where a public duty is owed, or public interest is involved, or where the public interest requires the performance of a private duty.”[8] For a liability waiver to be “contrary to a substantial public interest,” the business relying on the release from liability must be (a) significantly regulated by a public authority, (b) holds itself out to the public as willing to perform the sort of services subject to such regulation, and (c) purports to be capable of performing those services in conformity with the standard of care established in the community.[9] In a more recent unpublished case, the Fourth Circuit Court of Appeals interpreted the relevant North Carolina case law as not necessarily requiring heavy regulation of the activity or entity, although heavy regulation may well signify the presence of important public interest.[10]

An example where the court held that a liability waiver was unenforceable: In Strawbridge v. Sugar Mt. Resort, the liability waiver contained in the skiing equipment rental agreement released the resort from liability only for injuries “related to the use of this equipment.” That specific language did not protect the resort from suit because the plaintiff, in that case, did not claim that the equipment caused his injuries.[11] However, the waiver also stated broadly that customers “assume all risk of personal injury as a result of all the inherent risks of skiing.” This broad language sufficiently covered the plaintiff’s injury.[12] Nevertheless, the court ultimately found that the resort’s liability waiver ran contrary to the public interest and was unenforceable because “skiing presents numerous risks to participants” and the skiing industry is “sufficiently regulated” by the North Carolina legislature to make liability waivers improper.[13]

I was injured after signing a liability waiver: what should I do?

While reading blogs and online articles can help you get a general idea of the law, only an attorney can give personalized legal advice that applies to your specific situation. If you have been injured after signing a liability waiver in Iredell County and the surrounding area, Grimes Yeoman has decades of experience with Personal Injury claims and is here to help you.

 

Works Cited

[1] Strawbridge v. Sugar Mt. Resort, Inc., 320 F. Supp. 2d 425, 2004 U.S. Dist. LEXIS 14561.

[2] Strawbridge v. Sugar Mt. Resort, Inc., 320 F. Supp. 2d 425, 2004 U.S. Dist. LEXIS 14561.

[3] Hill v. Carolina Freight Carriers Corp., 71 S.E.2d 133 (N.C. 1952); see also Hall v. Sinclair Refining Co., 89 S.E.2d 396, (N.C. 1955).

[4] See Brenner v. Little Red Sch. House, Ltd., 274 S.E.2d 206, 210 (explaining that a court will “generally refuse to enforce a contract on the ground of unconscionability only when the inequality of the bargain is so manifest as to shock the judgment of a person of common sense, and where the terms are so oppressive that no reasonable person would make them on the one hand, and no honest and fair person would accept them on the other. In determining whether a contract is unconscionable, a court must consider all the facts and circumstances of a particular case. If the provisions are then viewed as so one-sided that the contracting party is denied any opportunity for a meaningful choice, the contract should be found unconscionable).

[5] Waggoner v. Nags Head Water Sports, 1998 U.S. App. LEXIS 6792.

[6] Chemimetals Processing, Inc. v. Schrimsher, 535 S.E.2d 594, 596 (N.C. App. 2004).

[7] Ehmann v. Medflow, Inc., 2020 NCBC LEXIS 46.

[8] Hall v. Sinclair Refining Co., 89 S.E.2d 396, (N.C. 1955).

[9] Strawbridge v. Sugar Mt. Resort, Inc., 320 F. Supp. 2d 425, 2004 U.S. Dist. LEXIS 14561.

[10] McMurray v. United States, 551 F. App’x 651 (4th Cir. 2014).

[11] Strawbridge v. Sugar Mt. Resort, Inc., 320 F. Supp. 2d 425, 432, 2004 U.S. Dist. LEXIS 14561.

[12] Id. at 433.

[13] Id.