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What does that waiver really mean?

May 06, 2007|Jenn Garbee | Special to The Times

WHEN first-time snowboarder Chisann Chi-San Man of San Francisco signed an equipment rental agreement during a January 2002 ski vacation, she assumed it was a standard waiver releasing the resort from liability for self-inflicted injuries and gear malfunctions.

But when she was hit by a snowmobile driven by a resort employee, the fine print on the 13-paragraph waiver became painfully clear: She had agreed to release the resort "from all liability ... including all liability that results from the Negligence of Providers, or any other person or cause," one paragraph read.

Signing a liability waiver has become a prerequisite for participating in almost any recreational activity, from riskier ones such as scuba diving and bungee jumping to something as simple as a farm tour.

So what does it really mean when you hastily scribble your name on the dotted line before your next vacation adventure?

It varies, depending on the waiver. Some, such as the ski resort's equipment release, are so broad that they may cover virtually any incident occurring on the premises, even those unrelated to the primary activity.

"You may have signed the waiver thinking it applied only to rental equipment failure or self-inflicted injury, but essentially, [the resort] takes the position that if anything happens to you ... like an employee runs you over or you eat a bad hot dog from one of their restaurants and die, the resort has zero legal responsibility," said Anthony David, a San Francisco trial lawyer who successfully represented Man in her lawsuit against the resort, Northstar at Tahoe.

Man suffered ankle, leg and shoulder fractures that required multiple surgeries.

The case settled for more than $900,000 in November 2004.

Northstar did not want to elaborate on this case. Jill Haley Penwarden, a sports and recreation lawyer at Duane Morris in Tahoe City, Calif., who represented Northstar, and her colleague John E. Fagan said broad liability waivers such as Northstar's are necessary -- and within the scope of California law -- to protect recreation providers.

"Basically, the California courts have held that releases in a recreational context should be upheld to bar lawsuits, because without them, many lawful recreational activities would be put completely out of business," Fagan said.

Recreational activity waivers such as those Fagan writes for several California ski resorts are increasingly using broad language.

But, Fagan said, despite such all-encompassing language, the consumer does have some protection.

Ultimately, a judge must interpret the reasonable -- and unreasonable -- boundaries of a waiver on a case-by-case basis.

For vacation providers, waivers have become a necessity in today's litigious society.

"It's actually kind of depressing for us that we have to make people sign these really detailed waivers," said Amy Beilharz, co-owner of Cypress Valley Canopy Tours, an adventure company that offers zip-line canopy tours on a tree-lined ranch outside of Austin, Texas.

"But our insurance company requires it. We wouldn't be able to operate otherwise because we couldn't get a policy."

Specific yet all-encompassing language can make a waiver hard to fight in court. Cypress Valley Canopy Tours' waiver includes language that releases its responsibility for issues as diverse as death and "simple hurt feelings."

"In a courtroom, you're going to have a big dispute about what terms like 'hurt feelings' mean," David said.

Ultimately, when deciding whether to engage in an activity that requires a waiver, trust your instincts.

"As a consumer, you want to feel comfortable about [the] level of instruction you are getting and with the people who are leading the activity," said Rachel Kosmal McCart, owner and chief counsel of Equine Legal Solutions of Beavercreek, Ore., which specializes in equine cases.

So should you sign a waiver the next time you're on vacation?

In most cases, you have no choice if you want to participate in the activity.

If you can't avoid signing a waiver, always read the fine print.

You can alter a waiver by adding a notation or marking through a clause and initialing it -- but many resort employees are trained to be on the lookout for such changes. Still, it's worth a try.

And you can always walk away. Who knows, you might even enjoy a stress-free, waiver-free nature hike after all.

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