Defeating Liability Waivers in Personal Injury Cases: Substantive and Procedural Strategies

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Defeating Liability Waivers in Personal Injury Cases: Substantive and Procedural Strategies THURSDAY, AUGUST 27, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Eric Romano, Romano Law Group, West Palm Beach, Fla. Ken Levinson, Levinson and Stefani, Chicago Michael L. Jacobs, Law Offices of Michael L. Jacobs, Seattle Jeffery M. Jacobs, Attorney and Counselor at Law, Law Offices of Michael L. Jacobs, Seattle The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 Defeating Liability Waivers in Personal Injury Cases: Substantive and Procedural Strategies Thursday, August 27, 2015 Jeff Jacobs Michael Jacobs Ken Levinson Eric Romano

6 There is a fine line between bravery and stupidity. If you get away with it, you are brave. If you don t, you are stupid. Francisco T. Escario 6

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14 Preliminary Considerations Strongly disfavored Strictly construed against defendant Close call will be resolved in favor of injured party Generally enforceable unless they contravene public policy or are prohibited by statute Court s objective is to give effect to parties intent Determination of validity of exculpatory agreement is question of law for court to decide 14

15 Enforceability Requirements Language must be clear and unambiguous Language must be clear and understandable to ordinary person Must specifically limit liability for defendant s own negligence Intent to waive or limit liability must be clear and unequivocal - it will not be inferred 15

16 Enforceability Requirements Release must clearly state that it absolves defendant of liability for its own negligence Term negligence is generally not required, but it does support enforceability; some states require specific language Intent to apply to future activities must be clear and specific 16

17 Factors Supporting Enforceability Option to purchase insurance or pay additional fee to cover certain risks or damages Release language is more conspicuous than rest of document (i.e. larger font, bold type, capital letters, different color) Separate release signed by each person Signature is dated and witnessed 17

18 Waivers Prohibited Willful/wanton/gross negligence Intentional torts Breach of statutory duty (i.e. building code) Limit tenant rights (FL) Limit landlord s liability for negligent maintenance of common areas (WA) Construction contracts, unless it contains monetary limitation and meets other requirements Provisions of Ch. 718 (FL)- Condominiums - may not be waived if waiver will adversely affect rights of unit owners 18

19 Waivers Prohibited Construction liens (FL stat.) Legal malpractice Common carriers (see 46 USC 183(c) for cruise ships) Shorten statute of limitations (FL stat.) Nursing home residents rights (FL stat.) Child s right to child support Unfair or deceptive trade practices Unenforceable in LA and VA 19

20 Parental Waivers Parents have inherent authority to make decisions for their children without interference by government or third parties, unless decisions threaten harm to child Authority derives from fundamental liberty interest and right to privacy Decision to allow child to participate in activity is different from decision to waive child s rights. 20

21 Parental Waivers Parental waivers are supported by public policy when they relate to fundamental protections or activities, such as medical care, insurance and school or community activities. There is some degree of risk inherent in every activity, and every decision by parent to allow child to participate involves some acceptance of risk. 21

22 Parental waiver is generally unenforceable for commercial activities (FL, IL, LA, ME, MI, MS, NJ, NY, PA, RI, TN, TX, UT, VA, WA, WV) Child s right to seek legal redress is property right personal to child and generally cannot be waived by parent Waivers for commonplace child-oriented school or community activities are generally enforceable, upon same considerations as other releases (MA, OH) Parental arbitration agreement is enforceable, as it does not eliminate child s rights; it merely dictates forum Parental Waivers 22

23 Specific Statutory Authority F.S Closed course motorsport facility may condition admission to participants on signing of liability release F.S Equine activity sponsor is not liable for injuries caused by inherent risks of activity 23

24 Specific Statutory Authority F.S (3) - Response to Kirton v. Fields - Parents may waive in advance child s claims against commercial activity provider for injury/damage caused by inherent risk of activity. Release must meet statutory requirements to be valid. 24

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26 Public Interest Activities Liability waivers may be invalidated if: Concerns publicly-regulated activity Service of great public importance Open to any member of public Service is of essential nature FL, KY, MD, NC, WA, WV Decisive bargaining advantage Standard adhesion contract Defendant has control 26

27 Assumption of Risk Assumption of risk clause is evaluated like exculpatory clause Must clearly state what risks are being assumed Affirmative defense of assumption of risk has been merged with comparative fault; will not automatically bar recovery, as it is question of fact Assumption of risk requires knowledge and appreciation of risk 27

28 Assumption of Risk Defendant has no duty to protect plaintiff from inherent and unavoidable risks If defendant s actions increase or add new risks, duty arises Participation in contact sport is express assumption of risk of injury from bodily contact inherent in sport This assumption does not include negligent supervision or instruction by coaches or organizers, or risks not inherent in sport 28

29 Thank You Jeff Jacobs Michael Jacobs Ken Levinson Eric Romano