The state of Arizona is very friendly to you. While they can be enforceable in certain
situations, they are highly disfavored.
As a participant in some sporting event such as go-cart
racing, a mud run event, or other physical activity, there is a risk of getting
injured. Owners or organizers of these
activities, in an attempt to avoid lawsuits, will often require a waiver be
signed by the participants in an attempt to limit the owner or organizers’
exposure.
Generally, injuries will occur in one of three ways:
1. The
activity in question has some inherent risks.
For example, when you choose to play tackle football, you understand
that there is a risk that you may be tackled.
When you enter a mud run event, you understand there will be mud.
2. Something
the owner or organizer did was negligent, and that negligence created a risk of
harm that otherwise would not have existed.
3. The
owner or organizer, or one of their agents, was grossly negligent, reckless, or
intentional in their conduct resulting in injury to a participant.
As you seek to hold another responsible for injuries you
have sustained, it is essential to show that there was something in owners’ or
organizers’ conduct that fell below whatever reasonable standard of care that
they owed to you. You need to show that
if the person you believe to be responsible had acted reasonably, then you
would not have been injured.
Consequently, most of Arizona disputes with revolve around
#2 above. However, if you can clearly
identify the negligent act by the owner or organizer, and you can show that you
did not have an opportunity to bargain with the owner or organizer (meaning you
did not negotiate the terms of the contract), then Arizona law treats you
favorably as a claimant.
As a general matter, Arizona says that “An attempt to limit
one’s liability from one’s own negligence is not uncommon. The general reaction of courts to this
attempt has been unfavorable. The reason
is simple. To relieve oneself of
liability for one’s own negligence may encourage carelessness.” Sirek
v. Fairfield Snowbowl, Inc. 166 Ariz. 183, 800 P.2d 1291 (Ariz. App.,
1990).
In
Salt River Project Agric. Improv. &
Power Dist. v. Westinghouse Electric Corp. 190 Ariz. 463, 800 P.2d 1291,
(app. 1990) (“SRP”) the Arizona Supreme Court answered the question whether
“liability in a tort [can] be bargained away.” The answer to that question was
yes, BUT generally limited to the following circumstance: “The law disfavors
contractual provision by which one party seeks to immunize himself against the
consequences of his own torts.” (p. 383).
But the court did indicate it would be appropriate in a commercial
setting where “businessmen can bargain over which party is to bear the risk of
damage and set the price accordingly, thus achieving a more rational
distribution of the risk than the law would otherwise allow.”
Claimants also have the benefit of the fact that validity of
waivers, exculpatory clauses and other similar contractual provisions will
ultimately be a question for the a jury. Phelps.
v. Firebird Raceway, Inc. 210 Ariz. 403, 1111 P.3d 1003 (Ariz. 2009). Should you claim reach litigation, as many
do, the Plaintiff may be successful at overcoming the validity of the waiver
through a summary judgment, but even if they are not, they will still have the opportunity
to argue the case to a jury.
