Assumption of Risk and Liability Waivers

​There are a lot of activities that inherently include an assumption of risk.

There are risks in activities like skiing. One of those risks is suffering a knee injury while skiing in heavy snow.

The waiver of liability you signed when you purchase a season’s pass (or even a waiver of liability is printed on the back of the ticket if you’re only skiing for a day) effectively relieves the resort of any liability for the risks that are an organic part of skiing.

However, there are many risks that are not assumed or inherent in a particular activity. Two examples from recent cases:

We represented a group of people that were involved in a dune buggy tour. There was a “waiver of liability” sign at the ticket booth. It included stock language that the owner/operator was not being responsible for any injuries suffered during the dune buggy tour.

To the extent it is effective, this kind of release or waiver only applies to those risks that are inherent in dune buggy tours. These risks include things like getting sand in your eyes.

They do not include all injuries and, in particular, injuries that arise from accidents that would have been avoidable if the operator or driver of the dune buggy used common sense.

In the particular case we are working on the operator drove way too fast over unfamiliar terrain and launched the dune buggy high in the air, crashed, disabled the dune buggy and injured the passengers. This is not the type of conduct covered by a release.

Another case involving a wavier of liability and assumption of the risk stems from a serious injury suffered at Emerald Downs Racetrack. Our client signed a document that included a waiver of liability in association with his activities as an owner and trainer of horses. What he waived were any claims associated with injuries suffered either racing or training horses. It’s natural to assume that there’s an inherent risk of injury if you’re riding a horse as a jockey or that you may get kicked if you’re re-shoeing a horse in the stable.

However, our client was doing neither of these things when he was trampled by a runaway horse. In fact, he was hundreds of yards away from the stable walking on a pedestrian sidewalk when a horse broke free, ran almost a quarter of mile and struck him.

The kind of inherent risks contemplated in the agreement he signed were dramatically different than the events leading to his injury.

Even if you sign some sort of waiver of liability form (for either yourself or your child) it’s important to look closely at the type of risks that actually led to the injury as opposed to type of risks that are inherent in the activity for which the waiver was signed.