In early March, 2014, 63-year old, Anthony Theisen, was injured while riding an indoor amusement park roller coaster at Mt. Olympus Theme Park in the Wisconsin Dells. Theisen fell 17 feet and remains in a coma. In December, 2013, 23-year old Carson Tueller and his family went to a trampoline park. In what was described as a “freak accident”, Tueller broke his neck and remains paralyzed.
The number of indoor amusement parks has skyrocketed over the past couple of decades, providing a fun place for families to gather year round. Looking for exciting places to take their children, parents rush to establishments that have all sorts of distractions for kids, as well as adults, such as bounce houses, roller coasters, bumper cars, trampolines, wall climbing, and the ever popular laser tag. While the interiors of amusement parks tend to feature colorful decor meant to excite children, the activities do involve personal injury risk. The operators at amusement facilities may be giving protective parents a mixed message. While they assure parents that rides and other activities are completely safe, they shove a waiver form at the parents, indicating that they must sign in order for their children to enter the establishment or participate in the activity. A majority of parents sign, but most barely read it. While others read the waiver, many do not completely understand the impact. Should an accident occur and someone is injured, will such a waiver truly shield the operator from legally liability?
Enforceability of Waivers
Even though waivers seem to be boilerplate documents full of fine print, just like any other contract, if properly drafted and executed, a waiver is enforceable. In general, to be enforceable, the waiver:
- Must be clearly worded and unambiguous in its intent to relieve any and all legal liability, even liability for negligence.
- Language should be prominent and not be part of the fine print.
- Must be signed by the person who it is being used against. This means that each adult needs to sign a waiver and the adult needs to sign a separate waiver for each child.
When a Waiver is not Enforceable
While carefully drafted waivers are enforceable, there cases in which a court may not enforce a waiver, these exceptions may include:
- Gross negligence or willful conduct: If a waiver purports to absolve the operator from gross negligence or willful conduct, the waiver may be found to be invalid. Gross negligence and willfulness typically involve outrageous acts or omissions. Such examples include, when an employee purposely neglected to engage safety systems on a ride or when maintenance records show a pattern of blatant disregard for safety resulting in personal injury.
- Age of the waiver: If an establishment practices to keep waivers on “file”, then it may be a valid defense if several months have passed since a waiver was read and signed or if the waiver did not apply to the visit during which the injury occurred.
- Inconsistent with state law: If the waiver contains language that is inconsistent with the law of that state, a court may find the waiver to be invalid.
- Limitations in the waiver: If the waiver is very specific about the types of injuries that it covers, and the injury falls outside of what is specified in the waiver, then the waiver is irrelevant.
While most indoor amusement centers require patrons to sign liability waivers, they also brag about the safety of their operations; which is a “must” to keep families returning year after year. However, is it possible for an operator to essentially “waive” the waiver, verbally? In other words, if signing a waiver means that the patron is assuming risks involved, if he or she is told that there is no risk has the operator voided the waiver?
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