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Even If You Sign a Waiver, You Could Still Have a Claim

Written by Daniel B. Brill

Person signing a document

Whenever you go to a business that runs recreational activities such as rock climbing, trampolining, ziplining, skiing, or white-water rafting, the business forces you to sign a waiver before participating.  You have no choice.  Either you sign their waiver, or you can’t participate.  Most people don’t think twice before signing.  After all, you came to the business for a fun day of rock climbing.  Why would you turn around and drive home simply because there’s some form with legal jargon that you have to sign?

Imagine you’re enjoying the ropes course or climbing gym, when suddenly a piece of equipment breaks, or the instructor isn’t paying attention.  You fall and suffer an injury, such as a broken ankle.  You are in a lot of pain and require surgery and a lengthy recovery.  Even if the facility is at fault, you may think “well, I can’t sue because I signed that waiver.”  You don’t even consider contacting an attorney.  This is a big mistake.

Does a Liability Waiver Prevent You From Suing?

In Connecticut, signing a liability waiver does not automatically prevent you from suing a recreational operator.   In the case of Hanks v. Powder Ridge Rest. Corp., 276 Conn. 314, 336 (2005), a man went snowtubing at a recreational facility when his foot became caught between the tube and the man-made bank of the snow tubing run.  The man suffered serious injuries and needed multiple surgeries.  The recreational facility argued that the signed liability waiver barred the man from suing. The Connecticut Supreme Court disagreed, voided the liability waiver, and allowed the man to sue.

The court reasoned that the facility’s waiver violated public policy.  Because the facility invited the public in exchange for a fee, it should not be allowed to escape liability for its own negligence.  The court considered the waiver to be an unfair “adhesion contract.”  An adhesion contract is a “take-it-or-leave-it” type of contract where the customer has no bargaining power with the company.  In contrast, if you negotiate to buy your neighbor’s car, you both have the same level of bargaining power.  A classic example of an adhesion contract is accepting the terms of service on your smartphone. You don’t really have a choice.  The company writes the contract, has all the power, and you have to accept the contract to use the product.

In Connecticut, liability waivers written by recreational operators are viewed the same way as your smartphone contract.  They are adhesion contracts.  In the recreational facility context, because the consumer is at such a disadvantage, courts generally do not enforce liability waivers.

Connecticut is different than most states, which uphold adhesion contracts that release recreational operators from liability for personal injuries caused by their own negligent conduct.  Other states will release the business from their negligent conduct but not from gross negligence (egregious negligence).  Connecticut does not recognize claims for gross negligence, and therefore its courts do not make this distinction.  The result is that you can sue for regular negligence even if you signed a liability waiver.

Discuss Your Potential Case with a Skilled Attorney

So if you or a loved one were hurt at a recreational facility like a rock climbing gym, trampoline park, ropes course, amusement park, waterpark, or ski resort, do not despair over that liability waiver.  If your injury was caused by the facility’s negligence or its employees’ negligence, you may still have a case.  Speak with an experienced attorney to find out more.