By Ashley Ellixson
If you have been reading the blog for a while now, you know we frequently discuss landowner liability issues. A few months ago, I discussed issues to consider when forming a liability waiver. Today, I will be discussing the enforceability of that waiver. In other words, does you liability waiver ACTUALLY protect your operation from claims against a visitor who was unfortunately injured?
To answer this question and determine enforceability of a waiver, there are a number of elements to consider. Below, I will walk through a step-by-step analysis to illustrate how and when a liability waiver is effective and enforceable in order to protect your operation and its assets.
Do You Have a Signed Copy of the Waiver?
To enforce a liability waiver, you must actually have the signed liability waiver physically in hand. As obvious as this may seem, stolen or lost liability waivers will not support a defense that the visitor assumed the risk of his injury by signing a liability waiver. It is important to keep track of all signed waivers and keep them filed to protect yourself down the road. Simply keeping a file cabinet for waivers only will help when that unfortunate day comes and you need to provide the signed waiver of the person bringing suit against you. Make sure all employees or family members are aware of the process for storing your waivers, whatever that may be.
Are the Right Parties Released?
In a well-written liability waiver, the release of potential parties to be sued should be explicitly included. For example, a pumpkin patch self-pick waiver should include not only the pumpkin patch itself but also its owners, employees, and independent contractors. Additionally, if the farm does not own the land it operates, the landowners should also be included. It is also important to note that the parties to be covered can be listed by categories and not specific names. Employees may change so simply listing “employees” will be a safe way to go instead of constantly changing your waiver to include new additions and deleting former personnel.
Who Signed the Waiver?
A liability waiver will not be useful unless the right person signs it. The “right person” is the person actually injured. The person signing the liability waiver can only sign away his or her own individual rights, so a family member cannot sign away his or her entire family’s rights. Each individual must sign his or her own waiver.
Was the Injured Party a Minor?
The exception to the “right person” rule above is the situation of a minor (persons under 18 years of age). Minors cannot sign their own legal rights away. For this reason, the liability waiver your operation uses should have a signature area for legal guardians of minors where that legal guardian will be able to sign, stating that the guardian accepts the risks of what the child will be participating in on the farm operation. However, since the guardian’s signature only waives his or her right to sue, it would also be a good idea to include an indemnification clause. A well-drafted indemnification clause establishes that the person signing the waiver agrees that if anyone does sue in regards to the minor, he or she will pay for your legal defense.
What Caused the Injury?
A liability waiver is intended to inform the participant or visitor about the risks associated with your operation and thus needs to be very specific. The principle behind a liability release is “assumption of the risk,” so a liability waiver is more likely to be enforced if the situation that caused the injury is specifically laid out in the waiver. For example, a person is running through a field steps in a large hole and injures his ankle. We look to the liability waiver which states “no running through any areas of the farm.” This will be extremely helpful for the farm’s legal defense because the person that hurt himself signed a waiver which explicitly stated “no running.” He will most likely be found to be in full knowledge of the risks of his behavior.