Wednesday, May 22, 2013

I Think I Signed a Waiver, But I Got Injured. Now What?

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.