Dale Emch addresses liability of personal injury after waiver is signed

"Dear Dale: While I was at a local bar recently, I decided to ride their mechanical bull. Before I could ride, somebody from the bar made me sign a form that said I couldn't sue the bar if I got hurt. While I was riding the bull, the guy who was running it sped it up, I guess because I had not fallen off. I got thrown off the bull and my foot got caught in the stirrup, causing me to break my ankle. Even though I signed the form, can I still sue the bar for my injury? Also, does it matter if I was drunk when I signed the form?

ANSWER: In Ohio, an owner of a business offering a recreational activity may have a participant in that activity sign a waiver of liability that relieves the owner of a negligent act unless that act constitutes wanton or willful misconduct. Essentially, the owner and the participant to the recreational activity are entering into a contract.

The waiver forms generally say something like "the undersigned understands parachuting is an inherently dangerous activity and agrees to release AAA Parachuting Company from any and all liability and negligence resulting in personal injuries or death." The forms use more legal language, but that's the gist.

When someone signs a waiver of liability before participating in a recreational activity like parachuting, scuba diving, or even mechanical bull riding, that signature really means something. We've had cases in our personal injury office that we couldn't pursue because a waiver of liability was signed. Though there are exceptions, a release generally bars someone who gets hurt participating in a recreational activity from successfully pursuing a personal injury claim alleging negligence. The lesson is that we should all think twice about the potential consequences of signing our names to any legal document. If you have any doubts, and the issue is significant enough to you, consult an attorney to review the document. Most of us don't believe we're going to get hurt - or we overlook the danger - when our hearts are set on diving, parachuting, or just swimming at a water park, so we sign on the dotted line and hope for the best. I'm not sure that we really contemplate that the owner or employees of the business might do something stupid that could get us hurt or killed. And, if that happens, there's probably little recourse.

That said, there are a few things to consider. First of all, an attorney would have to examine the waiver form to see if it's easy to read, is in large enough type, if the meaning is clear, and if the language of the release is specific enough to shelter the owner from a negligence claim. That's not an exhaustive list, but you get the idea. If there are problems, those flaws should be construed against the drafter of the contract.

Another factor that keeps liability waivers from being completely bulletproof is whether the owner or an employee committed willful and wanton misconduct. The rough idea is whether someone's behavior created an unreasonable risk that was substantially greater than a routine negligence standard. So, if someone gets hurt because the parachute they've been provided doesn't open because it was packed improperly, that's probably just negligence and you're out of luck if you've signed a waiver. Alternatively, if the parachute instructor knows the weather conditions aren't right for a jump and the chute he provides you with isn't designed to withstand the elements, but he has you jump anyway, I'd contend that's willful and wanton conduct. In the latter case, I'd argue the waiver shouldn't bar a claim.

So, viewing your question threw that prism, the elements to consider are whether the liability waiver was flawed in the way it was drafted or whether turning the speed up on the mechanical bull constituted willful and wanton misconduct. If you can't show either of those elements, you may be out of luck unless you can prove the bar employees knew you were drunk when you signed the waiver."

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