Operators of amusement parks make it very clear that you’ll have to accept responsibility for your own injuries if you use their facilities. While the way they are written may vary and the law may be different from jurisdiction to jurisdiction, most such clauses are generally enforceable.
Much depends, as so many things in the law, on the actual facts, including the wording of the particular provision, the sufficiency of any posted warnings regarding the possible risks associated with any planned activity, and whether there may be a contributing factor to any injury, such as defective design or inadequate maintenance.
The provisions are there solely for the protection of the operators of such facilities, be they theme parks, traveling carnivals, local fairs or established amusement centers. And it isn’t just to defend against the typical slips, trips and falls but rather the more traumatic accidents which may occur, especially where visitors and participants continue to seek faster, taller and more exciting rides and venues. Injuries run the gamut from hearing loss and neck sprains to amputations, broken limbs and much, much worse. Each year thousands of patrons are taken to hospitals with serious and sometimes life altering injuries.
You can therefore understand why operators want to reduce or eliminate liability for such unfortunate events. They do this in a number of ways, but generally by having you accept the risk of participation and presenting you a disclaimer of fault. They also post signs warning of the potential hazards associated with going on their rides or using their property.
If the facility is properly maintained and kept in a reasonably safe condition, such releases can work. They must be clearly and unequivocally written to express the intention of the parties – that the amusement park or recreational facility owner be relieved from any and all liability for injuries sustained by reason of any negligence, including that of the owner or operator. But there can be no evidence of reckless conduct or intentional wrongdoing on the part of the park. Is the risk sufficiently described, is the person assuming the risk competent to do so, and is the risk actually covered by the language within the release?
All that said, a recent case has gotten the attention of many in this industry. It involves a 14 year old boy who was taken by his father to a motor sports park. There the teenager could ride his own all terrain vehicle (ATV). Before the father and son were allowed to enter the facility, the father was required to sign a release, waiving liability and assuming the risk on the boy’s behalf, essentially releasing the park of any liability in the event of injury or death. What was supposed to be a fun day came to a tragic end, however. While attempting a particular jump, the boy lost control of his ATV, fell off and hit the ground. He got up but quickly collapsed and died shortly thereafter.
The boy’s estate filed suit against the park for wrongful death and the park defended by presenting the signed release. The trial court agreed with the park but the appellate court reversed the decision. The case then went before that state’s Supreme Court to answer a question of great public importance – can an adult release the rights of an underage child? The court’s decision was a surprise. Such pre-injury releases, executed by a parent on behalf of a minor child, were unenforceable as to the minor or the minor’s estate. The state, the Court held, may in certain instances preempt generally accepted parental authority if it does so for the greater good.
This decision has sent shock waves throughout the tourism industry where waivers of liability are commonplace and where it has been standard practice for parents to sign such documents for their minor children. Bike and boat rentals, horseback riding, dolphin swims, animal interactions, thrill rides and other innately dangerous activities, all have required and obtained signed releases before allowing participation. Owners and operators may have been protected in the event of an unfortunate accident, but no longer when it comes to under age children. Indeed, this decision, if not overturned, will surely alter the extent to which young children will be allowed to actively participate at today’s amusement parks and recreational facilities.
Mr. Barthet is founder and President of The Barthet Firm, a seasoned 10 lawyer commercial law practice located in Miami, Florida (www.barthet.com). He was appointed Honorary Consul of Malta in 2008 and regularly represents entrepreneurs and established concerns in all manner of contract law, intellectual property issues and business disputes. He can be reached at firstname.lastname@example.org.