Are Liability Waivers Effective?
At almost every event involving any activity that might be remotely dangerous or involve the mere possibility of injury, we are often asked to sign liability waiver. Are they effective? Liability waivers are a big part of risk management plans. Whether they result in more cautious behavior or limit risk of liability is up for debate.
In Green v. Lajitas Capital Partners, LLC, an appeals court in El Paso, Texas, recently upheld the enforcement of a liability waiver involving a person injured after falling off a horse. The waiver, labeled in bold capital letters, noted a number of potential risks of injury and provided an express waiver of claims for negligence against a resort. While riding a horse provided by the resort, the horse Green was riding was spooked by a sprinkler system activating. She fell off her horse and was injured. Green sued claiming the release was not valid because (1) it only applied to occurrences arising from nature – not man-made conditions like sprinklers and (2) it was “insufficiently specific” under Texas law.
The Court of Appeals reversed noting that, in Texas, a release of liability, to be effect, must provide “fair notice” to the releasee of (1) the intention of the releasee to release claims of negligence which is specifically stated in the four corners of the document and (2) the release of liability must appear conspicuously in the document, e.g., larger type, capital letters, contrasting colors, or otherwise drawing attention to itself.
A side note:
Because the court found that the liability release was valid under the above test, it did not address whether the Farm Animals Liability Act also applied to bar her claim. That topic is reserved for another day.
Releases can be effective to reduce the risk of liability in connection with an activity that might be considered to present a potential for injury. A release should clearly denote what liability is being waived and the waiver should be conspicuously noted on the face of the instrument. Management is cautioned to work with counsel to obtain a legally enforceable waiver of liability. Participants, if you doubt whether the release would be effective and have time to do so, you may want to share it with your attorney, as well. Be safe out there!