Articles

The Standard Liability Waiver: Paper Tiger or King of the Litigation Jungle?

Michael Rabb and Destini Anderson Pratt | The DefenseLine Magazine a SCDTAA Publication

On March 7, 1998, Christine McCune¹ joined her husband and several friends for a paintball game at Myrtle Beach Indoor Shooting Range, Inc. Prior to the match, she received a face mask provided by the range for protection. During the game, McCune’s loose, ill-fitting mask came off after being caught in the branch of a tree. After her mask was raised off her face by the tree branch, McCune was struck in the eye by a paintball pellet that rendered her legally blind. McCune brought several causes of action against the Range based on the failure of the mask to be properly fitted and to properly protect her during play. McCune lost her case at every level of litigation due to a single piece of paper she signed just prior to her paintball game: a general waiver of liability. In an opinion written by Chief Justice Beatty, detailed below, this single piece of paper was found to be sufficient to release the Range from all liability for this incident.

Under South Carolina law, exculpatory contracts or liability waivers are writings that evidence express assumption of the risk between parties, typically where one party (the plaintiff) relieves another party (the defendant) from his or her legal duty toward the plaintiff. It is not essential that these agreements be for consideration, for example, a waiver signed by a patron to enter an amusement park.² Most courts generally disfavor these agreements, which will be discussed more below, but so long as the agreements are freely and fairly made between parties of equal bargaining power, and no public policy forbids them, the agreements are generally upheld.

Imagine a reigning heavy weight champion who contracts with a big network to engage in a legal boxing match, and essentially submits himself to personal injury—South Carolina courts have used this illustration to show a clear-cut view of the doctrine of assumption of the risk.³ South Carolinians who decide to spend their free time at businesses such as shooting ranges, trampoline parks, and even raceways, and consequently injure themselves while at these establishments, may find they are completely barred from recovery under theories of negligence or strict liability.

Consider an amateur racer who voluntarily signed a waiver for participation in a stock car race at a Motor Speedway Track in South Carolina. The racer was injured after his car collided with the metal guardrail. The racer alleged that his injuries were caused by the Motor Speedway’s negligence in maintaining the guardrail. Our Supreme Court opined that the Plaintiff’s claim was barred by his own assumption of the risk, and the Plaintiff voluntarily entered into the waiver and release agreement.⁴ Like the McCune case illustrated above, South Carolina views waivers like these as exculpatory contracts. Exculpatory contracts are strictly construed against the party relying thereon. The McCune Court explained that the agreement the Plaintiff signed was sufficient to limit the liability of the Range because the Plaintiff voluntarily signed the agreement specifically stating that she (1) assumed the risks, whether known or unknown; and (2) she released the Range from liability, even from injuries sustained because of the Range’s own negligence.⁵

Unlike other states, South Carolina courts have repeatedly upheld these “waivers and releases” when signed voluntarily by plaintiffs. As mentioned above, courts in general are weary of exculpatory contracts, but South Carolina courts have upheld them in many instances, opining consistently that people should be free to contract as they choose so long as public policy is not threatened. This public policy concern was illustrated in the case where Plaintiff Daniel Fisher was severely injured while serving on a wrecker truck crew at a Racetrack. Fisher signed a release with language absolving the business from liability when, “[a]ny person in any restricted area,” was injured.⁶ Our Court of Appeals found the provision too broad to be enforceable against Fisher and void against public policy, even though Fisher had freely entered into the agreement.

While South Carolina typically upholds these contracts, other states have developed their own precedent about exculpatory provisions in private contracts. Two prongs remain the same: (1) the exculpatory clause must be strictly construed against the party relying on it; and (2) the exculpatory clause must conspicuously and clearly describe the liability to be limited. States like Wisconsin often disfavor these types of agreements. This was illustrated when a Wisconsin Court rejected a waiver argument when a citizen drowned in a swimming pool after signing a release of liability. The Wisconsin court explained the release violated public policy due to it being “overly broad and all-inclusive.”⁷ Wisconsin courts have repeatedly held that “take it or leave-it” contracts violate public policy. In the swimming case, the Plaintiff had no opportunity to bargain and either had to sign the release or swim elsewhere. States like Ohio have taken a more objective approach. In Ohio, if an ordinarily prudent and knowledgeable individual would have understood the provision as a release from liability for negligence, then the release is upheld.⁸

Interestingly, states that recognize degrees of negligence, such as gross negligence or aggravated misconduct, will not dismiss a plaintiff’s tort suit due to a waiver alone. Essentially, exculpatory clauses that are deemed valid under general negligence will not shelter a defendant under gross negligence claims because of public policy concerns. Connecticut courts do not recognize degrees of negligence and have still limited releases only when public policy is implicated.⁹ Likewise, patrons of certain New York establishments can partake without fear of signing away their rights to sue, due to the state deeming any waivers in connections with pools, gymnasiums, amusement parks or other similar facilities essentially void and against public policy.¹⁰ Whether or not injury waivers are upheld in certain states typically depends on a specific state’s statute and case law, in addition to whether the release is a violation of public policy or not. Defense attorneys should consider the jurisdiction, relevant statutes, precedents, and the public policy concerns when creating their defense strategy.

Endnotes

_{¹ McCune v. Myrtle Beach Indoor Shooting Range, Inc., 364 S.C. 242, 612 S.E.2d (Ct. App. 2005).
² Restatement (Second) of Torts §496(B).
³ Daniel v. Tower Trucking Co., Inc., 205 S.C. 333, 32 S.E.2d 5 (1943).
⁴ Huckaby v. Confederate Motor Speedway, Inc., 276 S.C. 629, 281 S.E.2d (1981)
⁵ McCune v. Myrtle Beach Indoor Shooting Range, Inc., 364 S.C. 242, 612 S.E.2d (Ct. App. 2005).
⁶ Fisher v. Stevens, 355 S.C. 290, 584 S.E.2d 149 (Ct. App. 2003).
⁷ Atkins v. Swimwest Family Fitness Center, 691 N.W.2d 334 (Wis. 2005).
⁸ Hall v. Woodland Lake Leisure Resort Club, 1998 WL 729197 (Ohio Ct. App. 1998).
⁹ Hanks v. Powder Ridge Restaurant Corp., et al., 885 A.2d 734 (Conn. 2005).
¹⁰ N.Y. Gen. Oblig. § 5-326 (McKinney).}