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Does a Waiver Form Waive Negligence?

Author: Portner & Shure

On Monday afternoon three children in South Glen Falls, New York were injured when a toy nylon "bouncy house" was blown away into the air by a gust of wind. A girl, age 10, and two boys, ages 5 and 6, were playing in the 10-by-10 foot roofless nylon playhouse when the 38-pound Little Tikes toy product broke loose from plastic anchoring stakes, local police stated. The girl fell out immediately and sustained minor scrapes and bruises. Two of the boys were severely injured as they fell out when the toy was 15 feet in the air. One of the boys fell onto a parked car, suffered a serious head injury, and is now, according to the Huffington Post, in a medically induced coma. The other boy fell onto the asphalt and suffers from broken arms and several broken facial bones.

This follows just days after a hot air balloon caught fire and crashed the night ahead of an inaugural balloon festival in Virginia. The hot air balloon was among 13 balloons that took off from Meadow Event Park, home to the State Fair of Virginia in Doswell, Virginia, and was approaching a landing site nearby. Two of the balloons landed safely before the third hit a live power line.

Most of us are familiar with waiver forms as we have signed them at one point or another. Whether entering a ski resort in Wintergreen, Virginia or an amusement park in Williamsburg, Virginia, these waiver forms state that by signing, you are assuming the risk and "waiving" your rights. A waiver is the intentional or voluntary relinquishment of a known right. Although a waiver form does not waive negligence, it does generally waive the right of the plaintiff to sue if negligence occurs. Negligence is defined as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. Negligence is any conduct that falls below the legal standard established to protect others against an unreasonable risk of harm.

The laws governing negligence and waivers vary from state to state. Most courts will uphold waivers of negligence. However, courts will invalidate waivers that are ambiguous or lack specificity, and waivers that are not conspicuous. In addition, courts will not uphold a waiver of "gross negligence." Gross negligence is "conscious indifference to the rights of others despite an actual, subjective awareness of the risk involved," as opposed to ordinary mistakes in the course of business. In addition, courts will invalidate waivers that are contrary to public policy.

It is most likely the floating "bouncy house" is going to turn into a products liability, and negligent supervision issue as the "house" was a toy and not a commercial playhouse. However, in the case of the hot air balloon, it is safe to assume a wrongful death claim will be filed soon and the Virginia courts will focus on the issue of waivers and gross negligence.

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