November 11, 2013

Liability waivers attempt to place the legal liability for all injuries resulting from an activity on the participant. (credit: TheDigitel Myrtle Beach)

Liability waivers attempt to place the legal liability for all injuries resulting from an activity on the participant. (credit: TheDigitel Myrtle Beach)

You’re about to go skydiving in Maryland, hang gliding in Virginia, or kayaking in DC and the recreation company presents you with a contract that must be signed before you can take part in an activity.  This paperwork will most likely contain language that purports to waive the participant’s right to sue the recreation company.  It might say something like “you engage in this activity at your own risk.”  If you’re a parent, you may have been asked to sign a similar contract before your child participated in a sports program, skiing/snowboarding trip, or rock climbing activity.

These clauses generally attempt to place the legal liability for all injuries resulting from the activity on the participant.  Black’s Law Dictionary defines these “exculpatory clauses” as a “contractual provision relieving a party from liability resulting from a negligent or wrongful act.” Similar to insurance, these waivers are a contractual technique designed to manage risk by moving the liability for injury from one entity that may bear the risk (the recreation provider) to another (the participant).  These waiver clauses are widespread in physical fitness facilities, outdoor recreation, local gyms, and sports programs.

Common names for this waiver clause that you may have been presented with include:

  • Indemnity agreement
  • Release of liability
  • Waiver of rights
  • Waiver of liability
  • Hold harmless agreement
  • Exculpatory agreement
  • Pre-injury release
  • Assumption of risk
  • Release
  • Disclaimer

Before signing such a clause, you might wonder to yourself whether the law actually allows these agreements.  A common misperception about these waiver clauses is that they are ironclad and always make the participant responsible for any injuries.  Others believe that waiver clauses do nothing and participants always retain the right to sue.  Like many things in the law, the truth lies somewhere in the middle.

Even if you sign a waiver of liability, the business entity offering the recreation, sports, or other activity program may not engage in egregiously dangerous behavior that puts the participants at unreasonable risk.  If you or a child was injured while engaging in an activity, the law may still allow for you to file a personal injury claim if the injury was caused by outrageously dangerous actions by the recreation provider.

There are many other factors that may influence whether a liability waiver clause applies, such as:

  • If the clause was signed while the participant was unduly influenced by the recreation company or under duress
  • If the assumption of risk clause contradicts public policy in Maryland, D.C., or Virginia
  • Whether the recreation company engaged in willful misconduct that caused the injury, such as knowingly providing faulty equipment

This blog post is not legal advice but provides a general overview of some of the law associated with liability waivers. There are a multitude of factors that may affect the enforceability of a liability waiver. Contact an experienced attorney in order to determine whether a liability waiver was valid.

In Maryland, liability waiver clauses are valid (with important exceptions)

Liability waiver clauses in Maryland are generally valid and “sufficient to insulate the party from his or her own negligence ‘as long as [its] language . . . clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence.”  Adloo v. H. T. Brown Real Estate, Inc., 344 Md. 254, 266 (1996).  There are, of course, several recognized exceptions, including:

  • When the activity host’s bargaining power is far greater than the signer, which puts the activity participant completely at the mercy of the host’s negligence
  • If the contract involves Maryland’s public interest (determined by evaluating the “totality of the circumstances against the backdrop of current societal expectations” – see Rosen v. BJ’s Wholesale Club)
  • If the activity host intentionally causes harm to the participant or engages in outrageous acts of negligence

In the 2012 case of Rosen v. BJ’s Wholesale Club, the Maryland Court of Special Appeals held that liability waiver clauses signed on behalf of a minor are not enforceable to waive future negligence.  In 2013, the Court of Appeals of Maryland (the highest court in Maryland) overturned this decision, holding that parents are empowered to make important decisions on behalf of their children, including signing liability waivers. The Court of Appeals held that signing exculpatory clauses on behalf of one’s children is not a transaction impacting the “public interest” (one of the exceptions mentioned above). Accordingly, liability waiver clauses signed in Maryland on behalf of one’s children are enforceable.

In Rosen, a father signed the “BJ’s Incredible Kids’ Club Rules” on behalf of his three minor children as part of his membership agreement with the wholesale club chain. About 15 months later, his wife dropped their five-year-old son at the Kids’ Club while she went shopping. While playing, their son fell off the front of a “Harry the Hippo” plastic play apparatus. A subsequent CT scan revealed that he suffered a large acute epidural hematoma in his right temporal and parietal convexity with extensive mass effect. He was transferred to Johns Hopkins hospital where he underwent a life-saving procedure. The parents sued BJ’s for their son’s injuries.

In Virginia, liability waiver clauses are usually unenforceable

The Supreme Court of Virginia has held that Virginia liability waivers for injuries caused by negligence are forbidden by public policy.  Hiett v. Lake Barcroft Community Assoc., 244 Va. 191, 194-195 (1992).  The Court stated that Virginia’s public policy “has long prohibited prospective releases of personal injury damages.”  Accordingly, if you or your child was injured in an activity that took place in Virginia, you may have a stronger chance of bringing your claim than if the injury happened in Maryland.

In DC, liability waiver provisions are enforceable (with exceptions!)

Unlike Virginia, the District of Columbia courts have held that DC liability waiver provisions can be enforceable.  Like Maryland, there are exceptions to this rule.  Liability waivers cannot exempt a recreation host from liability for gross negligence or injuries caused by intentional or reckless conduct.  The waiver provision must also be absolutely clear and unambiguous.  Maiatico v. Hot Shoppes, Inc., 109 U.S. App. D.C. 310, 312 (1961).

Liability waivers are not always enforceable

The law regarding these liability waivers continues to evolve and the information on this blog is not guaranteed to be the most current law.  We recommend consulting with an experienced personal injury attorney to determine how the current state of the law impacts your legal rights.

If you or your child was injured after taking part in a recreation activity and the activity host required you to sign a waiver provision, you may still be able to bring an injury claim.  The law varies considerably in Maryland, D.C., and Virginia, but the attorneys of The Cochran Firm, D.C., are well acquainted with the law, cases, and policy applying to liability waivers.  If you have questions about you or your child’s injury and liability waivers, please contact The Cochran Firm, D.C.  Because time limits apply to bringing a claim, we recommend you contact us as soon as possible.