Legality of waiver/release forms in adventure sports

In this article, Aparna Ravulavaru who is currently pursuing M.A. IN BUSINESS LAWS, from NUJS, Kolkata, discusses Legality of waiver/release forms in adventure sports.

There are many adventure sports activities, otherwise called as Extreme sports being conducted in the country for the youth in which there are elements of risks to body involved. The expectation is that persons with strong mind and sound body can only undertake to participate in the adventure sports.

Legality of waiver/release forms in adventure sports

Where there are fitness, recreation, and the extreme sports activities, there are injuries. And where there are injuries, there are lawsuits, resulting in financial loss to the providers of these activities. Therefore the activity-providers must take care to manage risk in two ways. First, they should take steps to reduce as much as possible the likelihood of injury. Secondly, they should do everything possible to protect themselves and their business entity from the risks involving financial loss.

In order to safeguard the interests of organizer(s) from any legal actions that may be initiated by the participants arising out of accidents during the adventure sport(s) and to make participants aware, the organizer(s) would require the participants to execute a participation form containing terms & conditions of participation. They shall include terms regarding the assumption of risk, release of liability, indemnifying, participants’ sole responsibility for their own conduct and actions while participating in the adventure sport(s). This is a covenant in which the participant agrees to absolve the provider of any fault or liability for injuries resulting from the ordinary negligence of the provider and its employees or its agents. The agreement relieves the provider from liability for injuries resulting from mistakes, errors, or faults of the provider. This agreement usually goes by the name ‘a waiver’ or ‘a release’ and it is contractual in nature and is governed by the law of contracts. It sometimes goes by the name disclaimer, and exculpatory agreement (with minor differences). It is signed between the service provider and the participant prior to participation. Therefore, a valid release/ waiver must exhibit all the ingredients of a valid contract with the release being the relinquishment of a right or claim, or privilege by a person in whom the right, claim, or privilege exists to the person against whom it might have been demanded or enforced.

Sample Adventures Liability Waiver Form

A waiver can protect the provider from liability for injuries caused by provider’s negligence. A waiver generally does not protect the provider from liability for extreme actions. Here is a model Liability Waiver/Release format.

“IN CONSIDERATION of being permitted to learn or practice Snorkeling and related activities, hereinafter referred to as ‘Activities’ conducted by M/s Hyderabad Fun Equips., having its registered office at No 3B, Srinidhi, T37 A&B, 16th Cross Street, Hyat Nagar, Hyderabad represented by its partner Joseph Nordan, (Hereinafter referred to as the “Conductor”, under the guidance of Joseph Nordan, Avinash Singh Thapa, Manik Teja, Naveen Pandey and Varun Nayyar hereinafter jointly referred to as the “Instructors”, I the undersigned for myself, my representatives, assigns, heirs, and next of kin do hereby:

  1. Acknowledge and agree that I am aware of the risks involved in the Activities and have also been apprised by the conductor through his instructors of the inherent risks and dangers associated with Snorkeling in flat and white waters and having understood the risks associated with the sport I have willingly agreed to learn and participate in the sport of Snorkeling;
  2. Assure that I am in proper and good health and I am physically fit to learn and also participate in the sport of Snorkeling and represent that I am not suffering from any disease which might remotely either put myself or the other participants to any risk or danger;
  3. State that I am not suffering from hydrophobia and I know how to swim and I am comfortable swimming in flat and moving water.
  4. Agree to comply with the stated terms and conditions of participation; further agree and warrant that if at any time when I believe and think that any conditions to be unsafe, I will discontinue further participation in the Activities immediately thereon ’
  5. Shall not hold the conductor, instructors, employees, other participants, owners, lessors or anyone responsible for any injury that might happen to me in the course of my journey to the venue and my journey backwards;
  6. FULLY UNDERSTAND that: (a) Snorkeling and related activities involve risks and dangers of damage to one’s personal property and serious bodily injury including permanent disability, paralysis or death, hereinafter referred to as Risks; (b) these Risks may be caused by my own negligence, lack of skill, by my or other co-participants’ actions or inactions, the condition in which the Activity takes place, or the error in judgment of the Instructors named above; (c) there may be other risks together with economic and social losses known to me or not, readily foreseeable at this time; (d) injuries caused by attacks of wild animals which may occur when close to the river or forest environment and I fully accept and assume all such risks and all responsibility for any losses, costs, and damages that I may incur as a result of my participation in the Activity;
  7. HEREBY release, discharge and agree not to sue the conductor, Instructors, employees, any sponsors, advertisers, other participants, and if applicable, owners and lessors of premises on which the Activity takes place, from all liability, claims, demands, losses, injuries, damage to property or other damages caused or alleged to be caused on my account in whole or in part by the bonafide errors of the “Releases” or otherwise, including error in judgment in rescue operations; and I further agree that if, despite this release and waiver of liability and indemnity agreement myself or anyone on my behalf, makes a claim against any of the Releases, I will indemnify, save, and hold harmless each of the Releases from any expenses on litigation, attorney fees; or loss, liability, damage, or cost which any may incur as the result of such claim;

I have read this agreement and I fully understand its terms; I also understand that I have given up substantial rights by signing the agreement and have signed it freely and without any enticement or assurance of any nature and intend it to be a complete and unconditional release of all liability to the largest extent allowed by law and agree that if any portion of this agreement is held to be not valid, the balance shall continue in full force and effect.”

Legal aspects involving Waiver/Release form

Generally speaking, the participants of adventure sport(s) are divided into two age groups, i.e. one as the ‘kids group’ with persons in the age of 8 to15 years and another age group as the ‘adult group’ of persons with the age of 16 years and above. In the adventure sport(s) for ‘kids group’, one parent/guardian will accompany the child on the course in order to monitor them, viz. they are merely there to cheer their children on and ensure that they follow the rules of completing the adventure sport(s) safely;

This part of the article discusses certain broad legal issues involved in the Waiver / Release / Participation Form which is signed by the participants or their parents/guardians, as the case may be, to enter into adventure sports/games.

Legality of Contract by Guardian related to Minor participation

  1. When the age of majority has been provided by law to be 18 years, any person less than that age would be a minor in law. [See: Bhim Mandal v. Magaram Corain (AIR 1961 Pat 21)]
  2. A minor has no legal competency to enter into a contract or authorize another to do so on his/her behalf. A guardian therefore steps in to supplement the minor’s defective capacity. The guardian can only function within the doctrine of legal necessity or benefit and the validity of the transaction is judged with reference to the scope of power of the guardian to enter into a contract on behalf of the minor. [Vadakattu Suryaprakasham v. Ake Gangaraju (AIR1956AP33)]
  3. Under the Hindu Law, the natural guardian has the right to enter into a contract on behalf of the minors and the contract would be binding and enforceable if the contract is for the benefit of the minors concerned. (Manik Chand And Others vs Ramachandra Rao 1981 AIR 519 & Roomal And Ors. vs Siri Nivas AIR 1985 Delhi 153)
  4. The provision of sub-section (1) of Section 8 of the Contract Act makes it expressly clear that no personal covenant of the guardian shall be binding on the minor. (Darbara Singh Vs Karminder Singh and Ors. AIR1979P&H215)
  5. It is well settled in law that the guardian can in no case bind the minor by a personal covenant. It means that a covenant that creates a personal right or obligation enforceable only between the covenanting parties is not binding on the heirs or assigns of the parties.

Waiver under Law

  1. A waiver amounts to the abandonment of a right and is either express or implied. A person who is entitled to the benefit of a statutory provision may waive it and allow the transaction to proceed as though the provision does not exist. {Gangadhar Vs. Election Tribunal, Vindhya Pradesh and others (AIR 1954 VP 44)}
  2. Waiver is a voluntary and intentional relinquishment or desertion of a known existing legal right, advantage, benefit, claim or privilege, which except for such waiver the party would have enjoyed. Waiver is express or implied; it is said to be express, when the person entitled to anything expressly and in turn gives it up, in which case it nearly resembles a release; but it is implied, when the person entitled to anything does or consents in something else which is inconsistent with that to which he is entitled so. (Badri Narayan Harnand Roy Vs Jawahar Singh Maniram and Anr. (AIR1961MP29))
  3. It is settled in law that as per Section 63 of the ICA, it is open to a promissee to dispense with or remit, wholly or in part, the performance of the promise made to him or instead of it he can accept any satisfaction which he thinks fit. Waiver is the abandonment of a right which normally anybody is at liberty to waive. “A waiver amounts to a release. It signifies nothing more than an intention not to insist upon an extant right.” (Jagad Bandhu Chatterjee vs. Smt. Nilima Rani and Ors. [(1969 3 SCC 445] and Shrinivas Kini v. Ratilal Bhagwandas & Co. [1959 Supp. 2 S.C.R. 217]

Negligence & Right to Sue

  1. The principle of “negligence” means failure to observe that degree of care, precaution and vigilance which the circumstances rightfully demand for the protection of the interests of another person, whereby such other person suffers injury. The test of negligence lies in default in exercising the ordinary care and caution which is expected of a prudent man in the circumstances of a given case. [M.N. Rajan and Ors. Vs. Konnali Khalid Haji And Anr [III (2004) ACC 273]
  2. While deciding whether the organizers of an air show had taken reasonable care in conducting the air show, the observation of the Court was that the organizers of the air show had no previous experience in arranging such events in the past and no written procedures on operation of aircraft during the show were neither laid down nor circulated to the participants. Based on the above observations, the Court held that the organizers were reckless in conducting the air show and liable for the compensation to the petitioner-participant. [Sudha S. and Others Vs. Union of India and Others ILR2013(3)Kerala245]
  3. Keeping in view of the above stated precedents, if a person gives consent that he or she will not take any action against the other party for occurrence or non-occurrence of any specific event(s), such person cannot initiate any action against for occurrence and non-occurrence of such specific event(s), unless If any such specific event(s) is occurred/not occurred due to negligence of the other person (i.e. the organizer) and where such other person (the organizer) owes a duty to take care of the safety of the person who provided his consent, and the person (who provided his consent) shall be entitled to claim the cost/damages/ compensation for the negligence of such other person.

When shall the waiver fail

  1. A number of factors can cause a waiver to fail. Some of these are: a) when the service is an essential service (e.g., medical care, electric or water service); b) when one party has superior bargaining power over the other (for example, employer and his employee); c) when the conduct is beyond ordinary negligence (e.g., gross negligence, reckless conduct, intentional acts); d) when the waiver is to relieve one of a statutory duty; e) when the waiver is not clear and unambiguous in its intent; f) when fraud or misrepresentation is involved.
  2. The most common reason that waivers fail is because they are poorly or badly written. A key guideline required is that the waiver language must be clear and unambiguous. If the waiver form does not clearly specify the intent of the parties to release the provider from liability for negligence, the court may not enforce the waiver. It is likely that what is considered clear and explicit varies from state to state. For instance, some states require the waiver to affirm that the signer is releasing the provider from the negligence and must include the word “negligence.” Some other states simply say that as long as the intent is clear, the specific language is unimportant and such language can be accepted as “release from any of or all claims.”
  3. Courts in many states enforce waivers of liability only for “ordinary negligence.” Courts in these states hold that enforcement of a waiver when the action results in the injury due to gross negligence; reckless conduct, willful or wanton conduct, or an intentional act is against public policy.
  4. Waivers are not generally enforced if one of the parties is clearly in a dominant bargaining position. Examples would include a coach requiring a waiver from his players, a teacher from a student, and an employer from an employee. Courts generally hold that recreation, fitness, and adventure sport waivers do not involve a clearly dominant position. Courts generally hold that such activities are optional, the participant can shun to participate, or can participate in another activity, or can go to another provider — here, there is no advantage in bargaining position for the provider.
  5. Most courts feel that it is important that the waiver language be obvious to the signatory; the waiver should be on a sheet to itself. This curtails the argument that the signer did not know what he or she was signing. On the other hand if the waiver is included in the membership contract or in the entry form containing other information, the signer is entitled to claim he or she failed to realize that he or she signed away important legal rights. This problem gets compounded when the waiver section of these documents is not highlighted and set off. Using larger print size, a subheading, bold print, or placing it in a box will help in removing hidden ambiguities and failure to do this can result in an unenforceable waiver.
  6. Waivers sometimes fail when the inherent risks of the activity are not listed and so Courts sometimes insist on such requirement. This would then work to the advantage of the provider because including the inherent risks in a waiver provides evidence that the signatory was aware of the inherent risks of the activity and assumed those risks. One caution that is suggested is to keep all discussion related to the inherent risks separate so that the signer will not confuse inherent risk with negligence risks.

Conclusion

Based on the legal provisions, precedents and analysis made herein above, a Participation/Waiver/Release Form which is duly signed by the participant (competent person) shall bind such participant with the terms and conditions of the Contractual Form. Organizer(s) should make aware all the participants of the rules, regulations, procedures, safety instructions, methods, and course of action, policy, guiding principles and such other instructions how-so-ever named, in relation to the adventure sport. Organizer(s) has a duty to take care towards the safety of the participants of the adventure sport(s). Whenever there is damage, injury, disability, harm, liability, loss, or expense caused to any participant(s) due to negligence of Organizer(s) in organizing the adventure sport(s), in such cases the concerned participant may initiate civil and / or criminal action including claim for damages / compensation against Provider(s).

 

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