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Hoffspiegel Law Blog

August 13, 2021

Have you ever gone to an amusement park, signed up for a dive trip, gone on a go kart ride or to a trampoline park and had to sign a Waiver of Liability in order to participate?

These days, being asked to sign such a document is a common occurrence. We have had clients come to us after experiencing a bad injury in the face of having signed such a document, wondering if there is anything they can do about it. The short answer is that often there is. While not always successful, the most common result is that the burden of proof you must establish is elevated.

Generally, waivers or exculpatory clauses are enforceable in Georgia and include covenants not to sue, liability releases, and indemnification agreements. However, no exculpatory clause can relieve liability for acts of gross negligence or willful or wanton conduct.

As a general rule, all business owners must use “ordinary care” in running their business.  Ordinary care means just what it sounds like.  If you get on a trampoline at a trampoline park, you have every right to expect that the trampoline is in good working order.  No tears.  No broken or protruding pieces of metal.  If you go to a go kart track, you expect that the karts will be in good working order and the safety barriers properly secured.  But we have represented several people who suffered serious injuries because this was not the case at the business they patronized. In all of those cases, the business required that customers signed a Waiver of Liability before jumping, riding, or otherwise patronizing the business.  When a business fails to exercise ordinary care and as a result someone is hurt, the business is guilty of negligence.

Under any circumstance, you would have to prove that the owner of the equipment was negligent in some way.  Did they fail to inspect the trampoline earlier in the day?  Were there too many people jumping at one time?  Did they check the mechanical condition of the go kart?  Were there monitors in the area to keep the older kids from trouncing the younger ones?

If you signed a Waiver of Liability, you have not actually waived all of your rights to hold a facility liable for their wrongful actions. Instead, the duty of ordinary care on the part of the business owner is reduced to “slight care”.  This means that instead of proving “ordinary negligence” (like in a car wreck or slip-and-fall case) you have to prove “gross negligence”.  Maybe inspections don’t have to be done every single morning.  Maybe fewer staff than normal.  Or not the best equipment.  But if you can establish that the business has done little or nothing, your claim may survive.

For example, our office has handled a number of go kart claims.  Go-karts are another name for an accident waiting to happen.  The places that operate the karts are frequently staffed by teenagers who do not do a good job of following rules.  For example, they may not have pads on the concrete walls to reduce the force of impact of a kart that has gone out of control.  And they go out of control all the time.  They may remove governors that are supposed to limit speed.  Fail to enforce helmet rules, resulting in someone’s hair getting pulled into an engine.  These failures may rise to the level of a failure to establish slight care, otherwise referred to as gross negligence.  If the failure on the part of the business entity rises to gross negligence, you likely will be able to pursue a claim successfully.

Think carefully before you engage in a potentially dangerous activity, particularly if you don’t know if you can safely rely on the entity and its staff to keep you safe.  However, in the event you or a loved one is harmed by someone’s negligence, even if you have signed a Waiver of Liability, the door may still be open to holding the wrongdoers accountable.