November 04, 2015 by Clay Williams
It is an annual tradition for my family to go to the mall in the fall and purchase our annual season ski passes. We get our pictures taken (and I have kept our passes for every year – they show the children growing up and, unfortunately, my wife and I getting old), and I sign a waiver.
In fact, I sign it several times and initial it a few times as well.
Doing so this year made me think what a great blog topic waivers would be. When you sign a waiver, what are you actually signing? Would it hold up in Court?
When you are presented with a waiver you are signing away your right to sue the operator and its employees for negligence. So you can’t sue even though you might have been grievously injured by the actions of an operator who was clearly not acting in a professional manner. Waivers are enforceable and are almost always upheld by the Courts.
Some real life examples of where waivers were upheld by the Courts are:
1) A zip line operator who told a person to go, when a person was stopped on the same line resulting in a collision.
2) A ski hill employee who ran a skier over with a snowmobile.
3) A skier who was run over by a chairlift when the lift attendant failed to press the stop button.
In the above cases, people were injured by mistakes made by employees. However, the operators were able to avoid responsibility because they had secured the injured party’s signature on a waiver.
A Court will look at the following factors to determine if it will allow an operator to avoid responsibility by relying on a waiver:
1) Does the clause apply to the liability?
Older waivers attempted to list every way a person could be hurt. However, the case law is now clear that Courts will enforce even a generally worded waiver.
2) Is the Clause Unconscionable
It is now settled law that it is not unconscionable to require a participant in a risky sporting or adventure activity to sign a waiver.
There is a line of cases where Courts have required an operator to bring the waiver to the attention of the person signing. Courts generally do not like waivers that are buried in fine print. For instance: a liability waiver that was contained in what looked like a team roster for a baseball tournament was not upheld.
Most operators do a very good job of bringing to your attention that you are signing a waiver. When I signed the waiver to get my ski pass, the waiver was headed in large, bold letters: Release of Liability, Waiver of Claims, Assumption of Risks, and Indemnity Agreement. By signing this document, you will waive certain legal rights, including your right to sue. And it was bordered in yellow and orange, and there were signs notifying me that I was signing a waiver. It would be a difficult argument for me to say I did not know what I was signing.
3) Is the Clause against Public Policy?
The Courts have now settled that waivers are generally not against Public Policy.
The Courts have given the hypothetical example of not allowing an operator to rely on a waiver due to Public Policy in a case where a company might know, or be reckless about, providing a service which injures someone meaning to rely on a waiver. However, no case has met that criteria as of yet.
If you are like me, you sign several waivers every year. The important point to take away is that the waiver will almost certainly be upheld and you will not be able to sue.
Waivers have been described as necessary. Many businesses are so risky, like white water rafting and parachuting, that it has been thought it would be unlikely they could operate without the protection offered by a waiver. However, it is cold comfort to a grievously injured person, who may have lost her ability to earn an income, when she finds she cannot sue, that the waiver has allowed the company to continue to operate.
One of the things I find interesting about waivers is that they interfere with the corrective function of a successful lawsuit in negligence. A company found to be negligent and ordered to pay money to an injured party will change how they operate so that they do not have to pay again. A waiver potentially operates to remove that force.
Another thing I find interesting, is that if an injured party is able to sue a negligent operator who injured her, the measure of damages is that sum of money that makes her whole (so much as money can do so). So, if a person cannot work because of her injuries, she may recoup her loss from the negligent actor. A waiver removes her ability to do so and potentially forces her into the social safety nets, which we all pay for. Is that fair?
The Province typically recoups its Health Care Costs in an action against a negligent actor. A waiver removes the Province’s ability to do so, which again means we all pay when a private operator is negligent. Again, is that fair?
Like most people, I just want to go skiing. I sure hope I don’t get run over by a chairlift though.