Liability Waiver Overcome With Evidence of Gross Negligence
Gregg Hollander | August 23, 2016 | Personal Injury
A growing number of organizations are requiring a signature on liability waivers before allowing folks to participate. On one hand, these documents are supposed to help patrons stay informed of the possible risks. The problem is, people rarely read them – or read them thoroughly – and the details in the fine print are often the most critical.
Although these waivers – which are essentially contracts – are often upheld by courts, they can be successfully challenged on a number of grounds. One could argue the waiver didn’t fully outline the exact risks. One might also argue that the waiver was inherently unfair. It’s possible to say the language was unclear or ambiguous. One could also argue gross negligence.
While waivers of liability can insulate organizations from liability for acts of negligence – which is an absence of reasonable care – they cannot insulate from gross negligence. The latter occurs when there is failure to use even the slightest amount of care. It is when a person deliberately disregards someone else’s safety by an act or omission they knew or should have known was going to put someone in danger. This was the allegation in the recent case of Steinberg v. Sahara Sam’s, weighed by the New Jersey Supreme Court.
According to court records in this personal injury lawsuit, plaintiff was a patron at an indoor water park in New Jersey, where he had taken his children for a day of fun. One of the rides at the park was called the “FlowRider,” and it was a simulated surfboard. Patrons had to sign a special waiver just to get on it. Riders could either lie down flat on the stomachs – as was recommended by the manufacturer for first-time riders – or try to stand up. If they chose to stand, they would be handed a rope to hold, with the ride attendant holding the other. Manufacturer instructions – as laid forth to employees before the park even opened – were that the rope wasn’t supposed to be held with both hands and it wasn’t supposed to be wrapped around riders’ wrists.
Further, the warning sign that was placed near the ride was from the 2007 manufacturer instruction – not the updated 2008 manufacturer instruction, which had more detailed warnings on the risks.
Plaintiff, riding the attraction for the first time (after signing the waiver), was not told about how it was best to lie flat the first time. He stood upright and he wrapped the rope around both his wrists. He claims no one warned him of this risk either. Seconds after the ride started, he fell, striking his head on the board and suffering a spinal injury that resulted in him becoming a paraplegic. Following an emergency spinal fusion and intensive physical therapy, he has been able to slowly learn to walk again.
Plaintiff sued the park for gross negligence. Both the trial court and the appellate court determined the park’s liability waiver and warning sign was sufficient, and plaintiff couldn’t proceed with his case. The New Jersey Supreme Court has now overturned those findings.
The court ruled that while plaintiff couldn’t prevail on a claim of simple negligence, due to the waiver, there was sufficient evidence of gross negligence, such that he should be allowed to proceed with his claim to trial.
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N.J. Supreme Court: Severely injured customer’s lawsuit against Sahara Sam’s can proceed, Aug. 24, 2016, By Barbara Boyer, The Philadelphia Inquirer