Waivers can reduce lawsuits

How can you reduce lawsuits? If your business is in the field of leisure, recreation or sports, then a well-worded waiver and hold-harmless clauses, can be an important part of your strategy. This is a risk management tool, and must be carefully considered.

Some of the important points include the following:

  • The wording and style of the document, needs to be regularly reviewed by your legal counsel. It is important to keep it current.
  • Document, document, document! Keep careful records and store them in an accessible manner. You could be facing a claim, that arises from an incident a number of years in the past.
  • Do your homework. Read over all contracts, in regards to waivers or hold-harmless agreements. You may find yourself in contravention of your own waiver, if you do not fully review this paperwork.

A case in the Ontario Superior Court, has validated the effectiveness of a waiver printed on a ski-hill lift ticket. The verdict in 2008, suggests that posted signs and a waiver, may be adequate to exclude resorts from liability, even when they are negligent.

A snowboarder, Kenan Cejvan, was injured at Blue Mountain Resorts Limited in Ontario. His injury was a result of a collision with a snow-making hydrant, that was hidden by a snow mound. Cejvan sued Blue Mountain for damages.

The trial judge ruled that Cejvan was 80% to blame for his injuries, and that Blue Mountain Resorts was 20% at fault.

When the case went to the Superior Court, the judge held that the defendant ski resort, was excluded from liability. This was due to taking reasonable steps, to draw the Cejvan's attention to the exclusion of liability clause. Cejvan's lift ticket had a clear, visible and legible warning, advising of the exclusion of liability. In addition, there were many brightly coloured signs, posted in high traffic areas.

Due to the resort taking these steps, it was ruled that the ticket holder assumes all risk of personal injury, and this included negligence. This ticket was a contract between Cejvan and the resort, so the result is an exclusion of liability.

The insurance answer is, that a waiver and hold-harmless can certainly limit successful claim payouts. It is a powerful tool, and you need to be cautious when entering into a contract, and you see the words, "waiver" or "hold-harmless".

Certain circumstances cannot be protected by a waiver. Remember, you have the highest duty to keep children safe. Talk over your concerns with your agent or broker.