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Waivers of Liability

penWhen the circus rolls into town there are sights and sounds that captivate the audience.  Many gasps and sighs form a chorus in the crowd in response to the planned acrobat stunts from the seasoned gymnasts and adventurers employed by the circus.  The light and ethereal mood can become dark and somber when the gasps and sighs correspond to unplanned events- like accidents.  Such was the case this past weekend in Providence when eight circus acrobats were hurt during a performance when a rig collapsed with the performers in midair.

Eight female acrobats were hanging by their hair forming a human chandelier when an apparatus fell and plummeted to the ground. The eight performers were brought to the hospital to treat their injuries.  As of the date of this writing, three of the performers are currently labeled as being in critical condition.  While no audience members were injured in the tragic accident, the question arises as to what happens when a patron or audience member signs a “waiver” or a release of liability prior to being in the audience or participating in a dangerous activity.

In the course of certain events ranging from ice skating to motorcycle lessons, patrons are often asked to sign a waiver of liability before they can participate in the event.  These “releases of liability” allow a person or an organization to exempt themselves from liability caused by their own negligence.  A general release will be binding on the parties and it may release all claims which the person signing the release may have, or yet to have, against the other party.  In the absence of fraud, accident, mutual mistake, or the rare situation in which the release is against public policy- these waivers of liability will be valid.

In Zavras v. Capeway Rovers Motorcycle Club, Inc., a case decided in 1997 by the Appeals Court in Massachusetts, a Plaintiff was injured while participating in a motorcycle race at the Defendant’s premises.  Plaintiff filed a complaint alleging multiple causes of action against the Defendant, including claims predicated on negligence.  The Defendant sought to dismiss the claims for negligence based on the fact that the Plaintiff signed a release of liability against the Defendant.  The court held that the execution of the release barred the negligence claims against the Defendant.  The court wrote, “a defendant ordinarily may ‘validly exempt itself from liability which it might subsequently incur as a result of its own negligence.’ “

However, the court did leave room for certain releases to be unenforceable:

“Even where simple negligence is alleged, our cases, for policy reasons, are cautious in enforcing releases against liability and in certain circumstances decline to do so:  e.g., where a release attempts to shield a defendant from responsibility for violation of a statutory duty …  where a public utility attempts to limit its liability, or where there is an obvious disadvantage in bargaining power so that the effect of the contract is to put a party at the mercy of the other’s negligence.”

Before signing a release or a waiver of liability you should be aware that you may be limiting your legal options or just compensation. If you or a family member have been injured and have signed a waiver liability, our office may still be able to help you pursue your claim. To schedule a free consultation with lawyer Daniel Cappetta, call our office today at (508) 969-9505 or fill out or contact form available on the right side of this page.