Liability Waivers in Nevada
Snow is on the ground, and more is predicted to fall in the coming weeks. Washoe County residents are likely to enjoy a white Christmas, and local ski resorts will be happy to welcome them after the presents are opened and the stockings are unstuffed. However, skiing and snowboarding, as well as off-season activities offered by ski resorts such as mountain biking or rock climbing, are inherently risky activities. Due to the innate risk of these activities, businesses which offer them usually require their patrons to sign a liability waiver before allowing their guests to participate. Although it is virtually certain that every reader of this article has signed one, few of us stop to consider in what circumstances a liability waiver may apply.
It is important to understand what a liability waiver is. A liability waiver is a form of contract between one party, a participant in an activity, and a second party, the provider of the activity. When a liability waiver is enforceable, it will limit the participant’s ability to sue the provider for injuries that naturally and foreseeably result from the specific activities identified in the liability waiver. Because a liability waiver is a contract, courts interpret them according to the basic principles applied to all contracts. Therefore, the specific language used in a liability waiver matters a great deal. If the language used in a liability waiver clearly does not apply to a certain event, it is unlikely to be enforced in a court of law. For instance, a liability waiver required by a dive shop which specifically waives divers’ ability to sue in the case of injury or death from drowning would not prevent a diver from suing the dive shop if the diver is injured from the negligent discharge of a flare gun on the boat.
The State of Nevada has strong public policies in favor of allowing parties to contract between each other freely and in favor of enforcing the terms of the agreements those parties make. However, that public policy is not without limits. In Nevada and most other states, public policy dictates that a business cannot waive its liability for anything greater than simple negligence. This means that a liability waiver does not apply to waive claims for gross negligence, recklessness, or intentional conduct. Using a different example, a liability waiver may prevent suit against a ski resort for an injury which occurred due to the failure of a poorly maintained chair lift if the failure is due to a lack of reasonable maintenance. However, a liability waiver would not apply if the poor maintenance is deemed to be grossly negligent (gross negligence refers to a severe breach of duty that rises to recklessness, maliciousness, wanton endangerment, or an intent to harm), or if the failure to maintain was reckless, or if injury to a patron was intended.
There are other factors which may bar the application of a liability waiver. The legal term for some of these factors is “unconscionability.” A liability waiver may be unconscionable if the terms are hidden in fine print, disguised in a seemingly unrelated clause, or are not clearly marked so that they are visible to the average person. A liability waiver may also be unenforceable due to unconscionability if it is written in legal jargon that is incomprehensible and confusing to the average reader.
Although liability waivers may not always be enforceable, they often are. It is important to be informed and read any agreement carefully before signing it. If you have any questions regarding the applicability or enforcement of a liability waiver, or if you require assistance drafting a liability waiver for your business, the attorneys at Lemons, Grundy & Eisenberg may be able to help.