League and Williams Lawyers

Tag: waiver

  • Dangers of Foam Pits and Injury Liability: Injuries at Convention in San Francisco

    Dangers of Foam Pits and Injury Liability: Injuries at Convention in San Francisco

    News of two people injured at “Twitch Con” spread on social media after an attendee tweeted that she had broken her back in two places after jumping into a foam pit. A video clip of her jump into the foam pit spread quickly on Twitter and other social media platforms. Unfortunately, injuries in foam pits and other attractions like trampoline parks are becoming increasingly common.

    The Dangers Present at the Lenovo & Intel Foam Pit

    The injuries at Twitch Con occurred at a foam pit sponsored by tech brands Lenovo and Intel. The attraction comprised of two slightly raised platforms over what appeared to be a pit of foam. Participants were meant to stand on the platforms and try to knock one another into the foam. To a casual observer, the activity would seem safe enough. How can a person become injured by falling into a foam pit? However, risks of serious injury are often made worse when participants believe an activity is safer than it really is. In this case, the design of the foam pit attraction was unsafe.

    League and Williams has consulted gymnastics experts to understand when foam pit design and operation become dangerous and negligent. In the Lenovo & Intel case, several design and operational factors of the foam pit evidently increased injury risk.

    Factors Compromising Foam Pit Safety

    League and Williams consulted with BC gymnastics industry experts to better understand how foam pit injuries can be prevented.

    To start, witnesses claimed the foam layer in the Lenovo & Intel foam pit was only about one foot thick. It was made up of one or two layers of foam cubes spread throughout the pit. Typically, foam pits are constructed with several feet of foam blocks (three to four feet at a minimum) for safety.

    Second, foam pits are typically constructed over a suspended trampoline like platform. This provides some give to reduce the impact of a fall and reduces the likelihood of injury. In the Lenovo & Intel pit, the small layer of foam obscured the solid concrete floor that was beneath it. Users were unaware of the hard ground they could fall on with no preventative safety measures in place.

    Finally, in the Lenovo & Intel foam pit the foam cubes were brand new. New foam cubes have less wear and give than foam cubes that have had some use or have been treated. When someone jumps in, new foam blocks tend to separate rather than compress. This means they will fail to adequately cushion a fall.

    Resulting Injuries

    The construction of the foam pit likely caused the foam blocks to separate instead of compressing under a falling participant. The pit’s depth and hidden concrete floor led to injuries as participants hit concrete with almost their full body weight.

    Often such events require participants to sign a liability waiver. Waivers can impact the ability of a person to recover damages for their injuries. It has been reported that those attending Twitch Con and using the foam pit signed a waiver.

    Liability and Waivers

    Nathan Grayson, a video games reporter for the Washington Post who attended the event shared details on Twitter. He shared on Twitter that people using the foam pit had to sign a waiver acknowledging risk of injury or damage to personal belongings and a media release for the use of their images. Many people assume that after signing a waiver they are unable to make a claim for any injury sustained. However, not every waiver provides effective defence to operator’s liability, and it is worthwhile to get legal advice on your specific circumstances. The elements of an effective waiver are:

    1. The waiver must clearly apply to the facts of how the accident or injury occurred;
    2. The waiver must not be unconscionable; and
    3. The waiver must not contradict public policy

    Contradiction of Public Policy

    Waivers are very rarely unconscionable or against public policy, so establishing liability where a waiver has been signed usually focuses on ensuring that the criteria #1 has not been met. Most companies are careful to draft their waiver to include details on how almost any injury could occur at their specific attraction in order to protect themselves from liability. For example, it is generally difficult for victims to successfully claim negligence on the part of a trampoline park because they signed a waiver that waived their rights to sue for an accident that is usually precisely outlined in the waiver. Nonetheless, there are several active cases of injured customers at trampoline parks throughout Canada, including the recent case of the Victoria man who died at a trampoline park in Richmond, BC.

    Even though a person has signed a waiver acknowledging inherent risk of injury, it is done under a presumption that the vendor has taken reasonable measures to make their attraction safe. In general, waivers will not protect companies from liability where they have breached their duty of care, which includes being diligent in constructing the attraction to be reasonably safe. In order to successfully establish liability when a waiver has been signed, the injured person must prove that the operator failed to warn of the specific danger which resulted in the injury, and/or that the injury was directly caused by the operator’s breach of their duty of care.

    Reminders for Parents

    Parents signing waivers on behalf of their children should also be aware that they may have further rights and remedies available to them under the B.C. Infant’s Act 1996. For more on this, read our article on minors and liability waivers.

    Trampoline park injuries, which include foam pit injuries, are the subject of active litigation around the world. Troublingly, there is no authoritative or government body regulating the safety standards of these facilities in Canada, the U.S. or the U.K. This not only makes it more difficult for lawyers to retrieve damages for their clients, it also makes visits to trampoline parks unnecessarily risky. There are very few established safety requirements for these facilities, and no requirements that staff have basic first aid training, increasing risk of minor or preventable injuries becoming life-changing for victims.

    If you are a business assessing liability and drafting a waiver, or have recently been injured after signing a waiver, contact an experienced injury lawyer today. We’ll carefully assess your unique needs and help to protect your interests. 

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • You signed a waiver, but did you say goodbye to your right to sue in BC?

    You signed a waiver, but did you say goodbye to your right to sue in BC?

    A waiver (or release) is an incredibly common and powerful clause.  Hardly a day goes by without coming across one or more of them.  Getting on a chairlift or a ferris-wheel, parking a car, or even leaving clothing at a dry cleaner often involves agreeing to a waiver.  A waiver is an agreement not to claim for damages caused by someone else’s carelessness.  They are often effective in avoiding liability, however, under certain circumstances they will not be enforceable.

    Agreeing not to sue

    The core purpose of a waiver is to promise not to sue for any injury, death or property damage arising out of an activity.  This includes not suing for loss caused by the clear negligence of another person.  In British Columbia, claims against businesses and activity operators are barred as a result of an agreed upon release.

    Insurance companies like releases because they reduce the number of claims they have to pay because they reduce the likelihood their insured will be successfully sued.  

    Businesses like releases because they reduce the cost of their insurance.  If a business cannot get liability insurance, a well-drafted and presented waiver enables a business to avoid legal responsibility for negligence of the business and its employees.

    The idea that a person may be badly injured by the obvious negligence of another, and be without legal recourse is frightening. However, just because a person has signed a release, does not mean that the waiver will be enforceable (effective).  In order to be effective, the waiver must meet specific legal tests.  If the waiver fails to meet these requirements, a person or business may still be successfully sued.

    The legal tests waivers must meet to be effective

    Many releases are enforceable, such as the one upheld in a recent case (Loychuk v Cougar Mountain Adventures Ltd.).  However, for a waiver to be upheld, it must meet several legal tests.  In general, the waiver must meet the following three tests:

    1. Must actually apply to the facts of how the accident occurred;

    2. Must not be unconscionable; and,

    3. Must not be against public policy.

    1. A waiver must apply to the facts of the accident

    Waivers must apply to the facts of the accident. To meet this test, the court considers whether the terms of the waiver included a description of the risks that caused the person’s injury.  A release only covers risks considered at the time the waiver is signed or accepted.

    The cause of the injury that the release seeks to avoid legal responsibility for, must be clearly described in the waiver; and, be generally foreseeable by the parties. For example, if you are skiing it is likely in your mind you might ski off a poorly marked trail and injure yourself. It is foreseeable to be injured in an avalanche that could have been prevented. However, being shot by an employee carelessly handling a firearm would not be foreseeable.  You would also not imagine that poor practices in the ski lodge would result in food poisoning.  Events that are not foreseen, are not covered by a waiver.  

    Waivers must use clear language to be effective.  The courts will consider whether the participant actually understood what they signed.  A signed release is assumed to have been read and understood.  However, being told to sign a release in a hurried or casual manner; or, failing to give adequate time to read and understand the release will result in the waiver being ineffective.  This is because the service provider knew or should have known that the participant was unaware of the legal or practical effects of signing the waiver.  Service providers and businesses must take reasonable steps to advise those who are signing waivers, even though there are no special obligations to ensure people have understood what they have signed.

    2. A waiver must not be unconscionable

    Secondly, a valid waiver must not be unconscionable.  In other words, even if the release applies to the facts of an accident, the court may find the waiver unenforceable because it is unconscionable.  A release is unconscionable when a person has abused their power to get the release signed and then relies upon the waiver. 

    That said, participants almost always have the choice between agreeing to the release and participating, or not participating at all.  Courts uphold releases even in cases where the participant travels long distances to participate in an activity, only to find that if they don’t accept the release they will be turned away.  The courts do not generally view inconvenience suffered by a person because they cannot partake in an activity unless they sign a release as an inequality in bargaining power that makes signing the waiver unconscionable.

    3. A waiver must not be against public policy

    The third main requirement of a valid release is that the waiver must not be against public policy.  That is, the waiver cannot be contrary to the interests of the general public as a whole.  In BC, courts have rarely exercised the power to overturn a waiver because of public policy.  Releases in adventure tourism activities, for example, generally do not give rise to public policy concerns because, by definition, these activities have inherent risk and people generally expect some risk.

    Many activities with reasonable care of the business, should be low risk.  A court might find it is against public policy to enforce a release where doing so discourages routine safety practices.

    When in doubt seek legal advice out

    Properly drafted and presented waivers can provide business owners with strong legal protection from claims.  Business owners should seek legal advice to draft the waivers they use to ensure they can be relied upon if and when needed.  

    Those injured should never assume a signed release provides a complete bar to suing for damages. Injured victims should seek out legal advice before assuming they cannot claim fair compensation. This is particularly true in cases where there has been significant injury, property damage or death.  Under those circumstances, it is not unreasonable to ask a judge to decide whether the release is enforceable.

    If you have a question about this topic or another legal issue, contact us for a legal consultation.  Reach us at 250-888-0002, or via email at info@leaguelaw.com.