Q: Our senior citizens group operates out of an old town hall. Public
liability insurance rates have risen dramatically and we are thinking
of cancelling our policy. We have never had a liability claim in all
our years of existence. Would a notice stating “Use this hall at your
own risk. We are not responsible for any accidents on this property”
placed in a prominent place, relieve us of liability?
A: A waiver notice may reduce the likelihood of liability. It won’t
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guarantee it and a court hearing may be necessary to decide whether the
notice was sufficient. The courts have said that a notice is effective
if the person suffering a loss or injury was clearly made aware of the
waiver, understood it, and the waiver covered all possible causes of
loss. Here are some examples of cases dealing with waivers and
disclaimers.
In Dyck vs. Manitoba Snowmobile Association, Dyck suffered serious
injuries while participating in a race sponsored by the association.
The accident occurred when Wood, an official of the association,
stepped into the middle of the track to signal the end of the race.
Dyck collided with Wood, then hit the outside track. As a condition of
taking part in the race, Dyck signed a release “to save harmless and
keep indemnified the association, its organizers, agents, officials …
from all liability … notwithstanding that the same may have been
contributed to or occasioned by
negligence.”
While the lower courts found that Wood was negligent by standing in the
middle of the track, the courts ruled the waiver released the
association from all responsibility. Canada’s Supreme Court agreed.
That court came to a different conclusion in Crocker vs. Sundance
Northwest Resorts. The ski hill sponsored a tubing competition that
consisted of going down the mogul run in oversized inner tubes. Crocker
signed an entry and waiver of liability form. On the morning of the
race, Crocker and his teammate drank extensive quantities of alcohol.
Two Sundance employees, on noting Crocker’s condition, suggested he
might not be fit to compete.
Nevertheless, Crocker proceeded. Crocker was injured and rendered a
quadriplegic. He sued the resort. The court found that the resort had a
duty to take reasonable measures to prevent a person in Crocker’s
condition from competing.
The court said the waiver was insufficient. Crocker had not read the
waiver clause and didn’t even know he signed it. He thought he was
merely signing the entry form in the same way that many of us sign
documents without reading them. The resort was found 75 percent at
fault.
Exclusion or disclaimer clauses are common when we park vehicles or
ship goods. In Brown vs. Toronto Auto Parks, the notice in the lot and
on the ticket clearly stated that cars were left at the owner’s risk
and the parkade assumes no liability for loss. The appeal court ruled
that while a person exercising reasonable care would have noticed the
signs, nevertheless, the words “car and contents at owner’s risk” did
not relieve the owner of liability for the negligence of its employees.
In Punch vs. Savoy, Punch had taken a family heirloom, a ring, to Savoy
for repair. She never got it back. Savoy was unable to repair the ring
and sent it to Walker in Toronto. When repairs were complete, Walker
arranged for CN’s express service to pick up the ring for return to
Savoy. Walker signed the standard shipping form limiting liability to
$100. The
ring disappeared while CN had it. CN did not call its driver in its
defence, but rather relied on the limited liability clause.
Evidence tended to suggest the loss may have resulted from employee
theft. The court concluded the limited liability clause was
insufficient and that if a carrier wanted to exclude liability for loss
due to employee theft, the exclusion clause had to clearly state there
was no liability for employee theft.
In the end CN, along with Savoy and Walker, were found liable.
To be 100 percent effective, everyone coming to your hall would have to
be made aware of the waiver before they stepped inside. You would have
to insist they read it and sign to indicate they understood it. It
would have to state that it covered all loss, including negligence by
your members, roof or floor collapse, explosions, slippery floors and
so on. I appreciate the dilemma you face, but it may be better to buy
insurance.
Don Purich is a former practising lawyer who is now involved in
publishing, teaching and writing about legal issues. His columns are
intended as general advice only. Individuals are encouraged to seek
other opinions and/or personal counsel when dealing with legal matters.
