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Waiver Enforceability in NC

Essentially, when a person (or another entity) is aware of a right or claim but chooses not to enforce that right or claim, they are waiving their rights.

Where do we find waivers?

Waivers have become increasingly common in our society. They may not be identified specifically as a “waiver” (though some will specifically use the term “waiver,” or waiver in connection with other terms such as “waiver of rights” or “waiver of liability”), but instead with terms including: release of liability, assumption of risk, indemnity, release, agreement to hold harmless, or exculpatory agreement. Often a waiver includes the term “release” somewhere in the waiver. Examples include:

  • Rent. Most leases contain a clause requiring that rent payments be received by a certain date each month. Often that same clause contains a penalty if the payment is not received by that date. In the situation where a renter typically pays on time, a landlord might choose not to enforce a penalty if the rent is late by a few days. 
  • Sporting Events. Many sporting events require that participants sign a waiver to participate. Those attending a sporting event will often find a waiver on their ticket.
  •  Recreational Activities. More and more recreational businesses are requiring customers to sign waivers before participating in activities on their premises. Examples include amusement parks, trampoline parks, rock climbing gyms, pools, and ski resorts. 
  • Medical Procedure Waivers.  Before being operated on, or treated by a doctors, most patients will be asked to sign a waiver. 

Enforceability

Waivers, though required by business, are not always enforceable. It is often up to a court to decide if a waiver is valid and enforceable. 

In Thackurdeen, et al. v. Duke University, et al., a case brought in the Middle District of North Carolina, the Court was asked to consider the validity of a waiver. The case arose out of the drowning death of Duke University student Ravi Thackurdeen who was enrolled in a college study abroad program at the time of his death. 

Ravi died while on a celebratory end of the semester trip to a beach in Playa Tortuga, Costa Rica. Ravi’s parents, as co-administrators of his estate, alleged, among other things, that there were no lifeguards on the beach and that swimming on that beach is inadvisable due to strong and deadly rip currents. They alleged that the students were told it was safe to swim and advised to swim parallel to the shore if caught in a rip current. Ravi was caught in a rip current, pulled out to sea,and drowned after treading water for 30 minutes. The Thackerdeens filed claims against Duke and another entity (OTS) for: negligence, wrongful death, and intentional infliction of emotional distress. 

Duke and OTS filed a Motion to Dismiss alleging, among other things, that the negligence and wrongful death claims should be dismissed because Ravi and his father had contractually waived and released those claims when signing two waivers - first, Duke’s “Statement of Authorization and Consent”, and second, OTS’ “OTS Participation  Agreement - Costa Rica.”

The key provisions in Duke’s waiver state: 

We understand that participation in the program is voluntary and that any program of travel involves some element of risk. We agree that . . . we will not attempt to hold Duke University, . . . liable in damages for any injury or loss to person . . . the student might sustain while so participating; and we hereby release Duke University . . . from any liability whatsoever for any personal injury . . .”

The key provisions in the OTS waiver state: 

A. I hereby RELEASE, WAIVE, DISCHARGE, AND COVENANT NOT TO SUE, the Organization for Tropical Studies, Duke University . . . (hereinafter referred to as RELEASEES) for any liability, claim and/or cause of action arising out of or related to any loss, damage, or injury, including death, . . .  that occurs as a result of my traveling to and from, and participation in this activity.

B. I agree to INDEMNIFY AND HOLD HARMLESS the RELEASEES whether the injury

or damage is caused by my negligence, the negligence of the RELEASEES, or the negligence of any third party from any loss, liability, damages or costs, . . ., that RELEASEES may incur due to my traveling to and from, an participation in this activity.”

C. It is my express intent that this RELEASE and HOLD HARMLESS AGREEMENT shall bind the members of my family . . . if I am deceased, and shall be deemed as a RELEASE, WAIVER, DISCHARGE, and COVENANT NOT TO SUE the above-named RELEASEES. 

F. I understand that by participating in this activity I will ASSUME THE RISK of injury and damage from risks and damages that are inherent in any activity. 

The Thackerdeens argued that, under North Carolina law, gross negligence claims cannot be waived. The Court determined that the conduct alleged by Thackerdeens in support of their negligence and wrongful death claims did constitute gross negligence. To rise to the level of gross negligence the Thackerdeens would have needed to present facts showing that the parties acted “purposely” with “conscious disregard for the safety of others.” They did not do so, so since there was no gross negligence, only ordinary negligence, the Thackerdeens claims could be waived under North Carolina law. 

The Thackerdeens next argued that that their negligence and intentional infliction of emotional distress claims were not barred by the doctrine of waiver of release because they fell outside the scope of the waiver; the trip was not on any schedule released by the program, nor did it serve any educational purpose. Therefore, the Thackerdeens argued, they did not consider this trip when executing the release. The Court disagreed, finding that this was a field trip that occurred within the context of the program and that it was therefore within the scope of the waivers. 

While the Court dismissed the Thackerdeens negligence and wrongful death claims, it did permit the intentional infliction of emotional distress claims to stand. 

Let Our Charlotte Attorneys Review Your Case

The Charlotte, North Carolina based lawyers at Rosensteel Fleishman, PLLC  are experienced attorneys. They can review your waiver and advise you as to whether or not it is enforceable and if you should proceed with a claim.  Please contact our office at 704-714-1450. There is no fee for an initial consultation.

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