Liability waivers are signed, often unknowingly, for activities ranging from golf courses to children’s recreation centers; typically we see these cases involving trampolines, swings, go carts, batting cages, roller coasters, and youth zip lines. While some waivers are enforceable as drafted – which enforces basic contract law, the Nevada Supreme Court recognized this type of waiver void in a case called Mizushima. There, the Court indicated that for a waiver to be effective, the business must specifically state that the negligence of the business is waived; thus, a broad express assumption of the risk waiver will not alleviate liability against the business. See Mizushima v. Sunset Ranch, 103 Nev. 259, 737 P.2d 1158 (1987). After this case, most contract attorneys drafted specific waivers releasing the negligence of the business thereby satisfying Mizushima.
Often these waivers will attempt to educate the participant such that the form acts as a tool make the participant appreciate the exact risk of harm. A defense to assumption of the risk, is that it be voluntarily assumed, and that the participant fully appreciate the risk of harm. Sierra Pacific v. Anderson,77 Nev. 68, (1961). These are often a question of fact for a jury.
It is improper for a Trial judge to dismiss the case prematurely in the form of a motion for summary judgment which summarily dismisses the case on the existing facts when the risk of harm may not be clear. When a child engages in a risky activity where the risk of harm is known, that can be a viable activity to assume the risk and avoid liability; however, if the risk of harm is not known then liability must be left to a finder of fact on this issue. For example, if a person goes to a batting cage and releases liability for being hit with a ball while participating in the cage, that is likely an enforceable waiver assuming it is properly drafted. However, if that same person goes to a batting cage, and while batting is hit with a chandelier that drops unexpectedly from the ceiling, that risk may not be even considered by the participant and the risk of harm not assumed by the batting activity.
In other words, a blanket waiver is not always enforceable. In Renaud, the Nevada Court held that, “It is necessary to evaluate all the circumstances as they existed at the time the release was obtained. Considerations should include (but are not limited to) the following: the nature and extent of the injuries, the haste or lack thereof with which the release was obtained, and the understandings and expectations of the parties at the time of signing.” Renaud v. 200 Convention Center Ltd., 728 P.2d 445, 441, 102 Nev. 500, 506 (1986). Thus, these factors must be examined to understand if a waiver is worth the paper it is drafted on.
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