By: Peter Thomas| Law Clerk
Ever thought about learning to rock climb or, even, skydive? Chances are good that before you ever get a foot off the ground you’ll be required to sign a release or waiver of liability form. A release or waiver from liability is a proactive measure designed to protect the owner/operator from being held accountable should you become injured in course of your participation. While these activities clearly involve a heightened element of risk and an operator’s desire to protect themselves is understandable, if not expected, release or waiver of liability forms have become a standard condition for participation in many ordinary recreational activities. These forms have become so universal that signing one has become a matter of routine for most of us, without much thought as to what we are actually agreeing to or the scope of their applicability.
If your child plays sports or participates in after school activities, you’ve very likely already been required to sign one. Parental waivers on behalf of a minor child are valid and enforceable in Massachusetts. Sharon v. City of Newton, 437 Mass. 99,109 (2002). When you sign a release or waiver of liability form, on behalf of yourself or your child, you are agreeing, in exchange for your/child’s allowed participation, that you will voluntarily forfeit your/their right to recovery should you or your child suffer injury, even if the injury was a result of the operator’s own negligence. Simply put, by signing the form, the owner/operator is being released from liability for injuries done to you or your children no matter how careless or negligent.
For the waiver to be enforceable it must contain clear and comprehensive language. However, failure to read or to understand the contents of a release does not avoid its effects. Only waivers obtained by fraud, duress, or deceit or those that offend public policy will be deemed unenforceable. Lee v. Allied Sports Assocs., 349 Mass. 544,550 (1965). It is been deemed to be against public policy to enforce contracts releasing parties from their own gross negligence.
As such, Massachusetts courts will not enforce a waiver if the injuries sustained were caused by gross negligence. Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17,18-19 (1997). However, gross negligence “is substantially and appreciably higher in magnitude than ordinary negligence.” While proving gross negligence can be substantially more difficult than proving simple negligence, it may offer an avenue of recovery.
Furthermore, the Massachusetts “recreational use” statute grants an exemption from liability to land owners who allow their property to be used recreational public use. This includes both outdoor and indoor, publicly and privately owned lands and can include activities such as hiking, biking, swimming, hunting, fishing and snowmobiling. The purpose of the statute is to encourage landowners to permit broad, public, free use of land for recreational purposes by limiting their obligations to lawful visitors. The property owner will be exempt from ordinary negligence where: (1) a defendant has an interest in land; (2) the plaintiff was injured when engaged in a recreational activity on that land; and (3) the defendant did not impose a charge or fee for the injured plaintiff’s use of the land. Amaral v. Seekonk Grand Prix Corp., 89 Mass App. Ct. 439 (2003).
This may create an issue if an adult or child is injured while partaking in a recreational activity and did not pay a fee to use the land; there may be no way to recover damages from the landowner.
The statute does not provide the landowner blanket immunity from liability, a landowner may be held liable if they engaged in conduct that was willful, wanton, or reckless as to the safety of users. “Willful, wanton, or reckless conduct,” within the meaning of recreational use statute involves an intentional or unreasonable disregard of a risk that presents a high degree of probability that substantial harm will result to another. Patterson v. Christ Church in City of Boston, 85 Mass. App. Ct. 157 (2014).
It is important to thoroughly understand a release or waiver prior to signing it. Consider inspecting the premises where the sport or recreation is taking place, and speak to the staff involved to better understand the information prior to signing a release.
In the unfortunate case that you or your child is injured, the attorneys at Wynn &Wynn, P.C. can help identify if you have an unenforceable release and determine if you have a potential personal injury claim. Call our office today at 1-800-852-5211 or request your free consultation.