Many tourists come to Florida seeking adventure, and they find it in the form of deep sea fishing or personal water craft rides or parasailing or swamp boat rides. Those are just a few examples, and in virtually every case, participants are going to be asked to sign a liability waiver.
These waivers are intended to protect the interests of the business offering the service from legal action should one of the participants get injured. These waivers, also referred to as “exculpatory clauses,” won’t automatically shield a company from all claims, but there is a rebuttable presumption that the contracts are valid. That means the burden of proof is on plaintiff to prove why they aren’t.
Some reasons why a waiver might not be valid:
- It goes against public policy;
- It’s inherently unfair;
- The language is ambiguous.
Participants in inherently dangerous activities may further have to overcome a defense asserting assumption of risk. That is, because the activity involved is obviously and inherently dangerous, plaintiff knew the risks and assumed them anyway.
In the recent case of Espinoza v. Arkansas Valley Adventures, the U.S. Court of Appeals for the 10th Circuit weighed a wrongful death lawsuit in which defendant sought to use a waiver signed by decedent as protection from liability.
The case stems from a tragic incident in Colorado in which a woman drowned on a family whitewater rafting trip after the raft capsized in rough waters and she was swept away by the current into a logjam.
The woman’s son filed a lawsuit against the rafting company, alleging negligence per se and fraud. Negligence per se is a claim in which plaintiffs assert a violation of the law is proof of negligence. Here, it was alleged the rafting company committed a misdemeanor by operating the raft in a careless or imprudent manner.
Defendant rafting company sought summary judgment on basis the decedent had signed a waiver of liability. District court agreed and granted defense motion for summary judgment.
On appeal, plaintiff argued this judgment was granted in error.
In its review, the 10th DCA analyzed state guidelines for liability waivers, finding they are generally recognized as formal contracts by the state. Plaintiff argued that while a liability waiver was signed (purporting to release the rafting company from all negligence claims) and the state public policy generally permits those for recreational pursuits, the waiver violated state public policy because of the alleged negligence per se.
However, the appeals court disagreed. It found that the factors used to consider the validity of such claims don’t take into account whether the activity is subject to state regulation, but rather whether it is a service that is of practical necessity and great public importance. This one isn’t.
Further, while the statute imposing criminal sanctions for violation of certain standards, there is no mention in the law of civil liability. It also makes no mention of barring rafting companies from contractual release of possible claims relating to negligence.
Thus, the federal appeals court affirmed the district court’s grant of summary judgment to defense.
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Espinoza v. Arkansas Valley Adventures, Jan. 5, 2015, U.S. Court of Appeals for the 10th Circuit
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Deadly Railroad Crossing Accident Follows Numerous Community Complaints, Dec. 29, 2015, Orlando Wrongful Death Lawyer