Anyone who has ever gone rafting, rented a bicycle, or registered for a sporting activity has probably been required to sign a long document filled with fine print and confusing legal jargon. Likely, you signed this piece of paper, commonly referred to as a waiver, without bothering to read it. You may not have realized that your signature gave away your right to sue or, if you’d thought about it, assumed that no court would uphold such an “unfair” waiver.
Negligent zipline operator avoided liability
However, the Supreme Court of British Columbia recently did just that. In Loychuk v. Cougar Mountain Adventures Ltd., two women who were injured after colliding on a zipline adventure tour in Whistler had their claims thrown out even though the zipline operator admitted fault for the accident.
Waivers defined
Waivers, also known as releases or exclusion clauses, are an acknowledgement by an individual that they are giving up certain legal rights. Typically, an operator of a business that involves customer risk will draft a waiver as broadly as possible to attempt to protect itself from all liability in the event of an accident.
Courts will uphold a waiver depending on a number of factors and have denied an operator’s attempt to rely on one when:
• the waiver was in small and illegible type
• the importance of the waiver was not brought to the attention of the signatory
• the person was told to “sign here” without being told what they were signing and were not asked if they read and understood the document.
Why the zipline operator was not found liable
In Loychuk, the plaintiffs were both told they could not participate in the zipline tour unless they signed a release that protected the operator from all liability, even if it was negligent. The release described the risks associated with ziplining, including the potential for a collision with another participant as happened in this instance.
During their final run on the zipline tour, the plaintiffs were injured when one of them was sent down the line before the woman in front had cleared the course. The accident was caused by miscommunication between the tour guides.
The operator did not deny liability but relied on the releases signed by the plaintiffs. The Court upheld the validity of the releases and dismissed the plaintiffs’ claims, finding that:
• It should have been apparent to the plaintiffs that the release was a legal document that impacted their legal rights.
• The release was brought to the attention of the plaintiffs by large, bold print at the top of the page.
• The plaintiffs were given an opportunity to read the release.
• The plaintiffs asked no questions about the release.
• The plaintiffs did not tell the company they would not sign the release.
• The plaintiffs had previously visited the company’s website which stated they were required to sign the release.
In addition, both plaintiffs had previously signed waivers for other activities. In fact, one plaintiff used waivers in her own business and the other plaintiff was a recent law school graduate familiar with legal terminology.
When in doubt, calculate the risks carefully
Whether or not a court will uphold a waiver and allow an operator to escape liability for its own negligence will turn on the individual circumstances of each case. Nonetheless, as this decision demonstrates, a waiver that is clear, easy-to-read and has been explained to the signatory is likely to stand up in court. The message is clear for adventure seekers—those waivers you sign may leave you without a legal leg to stand on.
Read other articles from the Spring 2011 Letter of the Law:
Homeowner’s Insurance Policies and Environmental Remediation by David Perry
Overbuilt Quarry Avoids Environmental Assessment by David Perry
Illness and Injury at the Construction Workplace by Barb Cornish and Debra Rusnak
A Lot of Discretion Under the Property Law Act by Mark Thompson and Mitch Dermer
Editor's Note by David Perry
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