The Importance and Place of Waivers in the Amusement Ride Industry

A Waiver is defined as "the act of intentionally relinquishing or abandoning a known right, claim, or privilege," and also as "the legal instrument evidencing such an act."

In the Amusement Ride Industry, many amusement ride hirers seek to protect themselves from law suits resulting from rider injury by having the rider or the rider's parents or guardians sign a Waiver prior to going on the ride (it should be noted that in many instances, the person signing the Waiver is not the person going on the ride, and that the rider is usually a minor).

While the Waiver is a useful deterrent, it does not necessarily protect you or relieve you of liability. An injured person, or the parent of an injured child, may very well decide to file a claim against the amusement ride hirer/operator/attendant to at least recover medical expenses, even if they previously signed a Waiver relieving the amusement ride hirers from responsibility.

After an injury occurs and the matter ends up being heard in a court of law, judgments are made, in many cases, based on:

a)   Insufficient protection for young children on the amusement ride in question. When making such rulings, judges usually do not let signed Waivers protect the amusement ride hirers. Therefore, such judgments may very well result in the plaintiff being awarded a sum of money, even though they had originally signed a Waiver.
b)   Protection of children's rights. There have been cases in which parents signed Waivers and their children suffered permanent injury. When the children reached legal age, they went to court on their own cognizance and claimed that their parents had no right to sign Waivers, and thereby sign away their (the children's) legal rights to compensation. The courts usually ruled in favor of the children, ruling that their parents had no right to sign away their children's right to sue.

There are a number of other occurrences in which courts may find Waivers to be invalid:

• Parents have signed Waivers and then did not remain on site when their children went on the ride.
• It can be shown that the equipment was not properly set up. Once negligence is proven, the court usually negates the validity of the Waiver.
• In cases of rentals, the Waiver was only signed by the owner of the site on which the equipment was set up, and not only by individual parents. In such cases, when the site owner has been added to the policy as an Additional Insured, the court may negate the validity of the Waiver.
• The Waiver was signed by people who were not related to the children and are therefore not authorized to sign, such as chaperones, teachers, group leaders etc.
• It can be shown that the signature was requested in such a way that the signatories did not know exactly what they were signing.

As a result it has been our experience that it is not always wise to allow these matters to reach the courtroom, but rather to attempt to reach a settlement with the plaintiff. Such decisions are generally guided by one, a few or all of the following considerations:

1. Is the claim valid?
2. What amount is the plaintiff claiming; is it reasonable?
   
3. What is the amount of the deductible under the insurance policy?
4. Will it be cheaper to settle out of court and avoid the additional legal fees involved in a suit?
5. How will this affect your Clean Loss Record? (Settlements do not affect Clean Loss Records if they do not exceed the deductible limit.)

To summarize, when clients ask us if they should have site-owners, riders or riders' parents sign a Waiver, we say, "Yes." However, we also warn them that they should not expect iron-clad protection in case of injuries.

(Joel Block is the Inflatable and Amusement Parks Liability Insurance Customer Service Officer at Sinclair Insurance Company)

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