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DeCormier v. Harley-Davidson – Liability Waiver Enforceability Challenged

Increasingly, companies and service providers require consumers to sign liability waivers, effectively agreeing to sign away their right to seek recompense should injury result from the activity or service. writinghand

In large part, courts have upheld the viability of these documents, considered formal legal contracts. This is why people must be extremely wary in signing these waivers.

However, this does not mean the existence of a waiver completely extinguishes a person’s ability to pursue civil litigation. To start, no waiver protects an entity from liability for an intentional tort or acts of gross negligence. Beyond that, the Florida Supreme Court has held such agreements are only enforceable when intent is “clearly and unequivocally stated.” (University Plaza Shopping Center v. Stewart, Fla. 1973). When the language is over-broad, plaintiff may have grounds to assert the specific dangers of the underlying activity were not apparent or disclosed.

Still, our Broward injury lawyers recognize these cases can present challenges. Overcoming the existence of a liability waiver adds another layer of difficulty to overcome, which means plaintiffs must have an experienced attorney at their side.

In the recent case of DeCormier v. Harley-Davidson Motor Co., plaintiff argued before the Missouri Supreme Court that a liability waiver signed prior to a motorcycle training course was unenforceable because it did not protect defendants against claims of recklessness or gross negligence.

According to court records, plaintiff participated in an instructional course for motorcycle riders sponsored by Harley-Davidson and conducted by workers at a local franchise. Both were later named as defendants.

Prior to participation, plaintiff signed a waiver that indicated she “released and forever discharged” affiliated parties from any liability claim or action grounded in negligence.

Later, while riding on the motorcycle, plaintiff suffered injuries when the bike slipped and landed on her leg.

She filed a lawsuit against defendants, alleging instructors directed her to perform motorcycle exercises on a range that was both icy and slippery. She asserted instructors knew or should have known the icy conditions created an unreasonable risk of physical harm, particularly for an inexperienced rider. Additionally, she argued premises liability on the grounds instructors and site owners should have known the icy, wet ground created a dangerous condition and should have cleared the track for students as part of the use of ordinary care.

Defendants moved for summary judgment, citing the waiver. Plaintiff acknowledged she’d signed the waiver, but asserted it was inapplicable in cases of recklessness or gross negligence, and there was a genuine issue of material fact as to whether defendants were engaged in such.

As further evidence, she presented the company’s own policy not to conduct classes in inclement weather or poor track conditions. Defendants acknowledged this, but maintained the waiver still released them from liability.

Trial court agreed and granted summary judgment to defendants. Appellate court affirmed, as did ultimately the state supreme court.

Problematically for this plaintiff, Missouri common law does not recognize degrees of negligence. That’s why this claim could not proceed.

Florida, on the other hand, does recognize degrees of negligence, so it’s possible a case like this might have succeeded here. F.S. 768.72(2)(b) defines “gross negligence” to mean conduct so reckless or wanting in care it constitutes conscious disregard or indifference the life, safety or rights of other persons exposed.

If you are injured in Broward, contact our experienced civil litigation attorneys to learn more about your rights.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.

Additional Resources:

DeCormier v. Harley-Davidson Motor Co., Nov. 12, 2014, Missouri Supreme Court

More Blog Entries:

Jones v. Imperial Palace – Trip-and-Fall Claims Require Actual or Constructive Knowledge, Oct. 12, 2014, Broward Injury Lawyer Blog

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