Donahue v. Ledgends, Inc. – Waivers Don’t Offer Limitless Release of Liability

Donahue v. Ledgends, Inc. – Waivers Don’t Offer Limitless Release of Liability

It’s the end of summer, and many young folks are eager to seek that one last thrill before it’s back to the regular grind of school, work and other responsibilities.


Many times, theme parks, sports venues, pools, gyms and other recreational hosts attempt to skirt laws on liability by having patrons sign a waiver of liability, in an effort to release the vendor of any legal duty to compensate the patron, should he or she become injured in the course of the activity. These waivers can be a hurdle for St. Louis personal injury lawyers to overcome. However, they don’t provide businesses with unlimited protection. Many releases are written far too broadly and/or fail to cite specific action for which the agency is hoping to be indemnified. Further, there is virtually no document that can hold a company harmless for intentional torts or gross negligence or for activities that are reckless with the well-being of the public.

This principle is generally applicable everywhere in the country, though the standard in Missouri was set in the 1996 Missouri Supreme Court case of Alack v. Vic Tanny International of Missouri. In that case, the court set limits on releases and liability waivers, finding they are not binding or valid on the injured party unless the written language meets the following specifications:

    • The language is clear and conspicuous. Bold, large-print, standout type clearly makes it known, high-up on the page, that this is a waiver of liability. Courts favor waivers of liability that are offered in documents separate from other agreements.
    • The language in the waiver must be unambiguous and free of duplicity.

Just because a contract says the company is indemnified doesn’t necessarily make it so.

That said, waivers can go a long way in shielding a business from liability, so patrons need to be wary. A good example of this was illustrated recently in the Alaska Supreme Court’s review of Donahue v. Ledgends, Inc. This was a claim brought against a rock-climbing gym, a private, indoor facility open to the public.

The plaintiff signed up to attend a rock-climbing class for women in the spring of 2008, believing, based on the advertisements, that it would be a safe way to learn to climb. She would later say she understood an inherent risk of climbing is falling.

When she arrived for the class, she signed a waiver of liability indicating her assumption of risk, which purported to indemnify the gym in case of injury. The waiver indicated the general risks of rock climbing included injury and death, and that such risks could not be eliminated. One paragraph held that while instructors seek safety, they are not infallible, and went on to cite possible errors by instructors. The waiver’s last line indicated in bold letters, “I am ultimately responsible for my own safety” during the course.

Additionally, signs posted throughout the gym indicated the dangers of climbing, which included falling.

During the second class, while following guidance from an instructor, she fell and landed in an awkward position, breaking her tibia in four places. She was attended to immediately by staff at the gym, which included an on-site physician.

The patron later sued the gym for negligent failure to adequately train and supervise instructors. The gym moved for summary judgment, holding the release the plaintiff signed made her claim null and void. The superior court granted that motion, and it was later upheld on appeal.

The state supreme court, in its review, that the waiver was specific in its explanation of risks to the patron, and that she knowingly accepted the potential for these risks prior to participation in the course. The court noted, “a conspicuous and unequivocal statement of the risk waived is the keystone of a valid release.”

Additional Resources:
Donahue v. Ledgends, Inc., Aug. 1, 2014, Alaska Supreme Court

More Blog Entries:
Kingsley v. McDonald – Court Greenlights Accident Lawsuit Despite Technical Error, June 11, 2014, St. Louis Car Accident Lawyer Blog


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Ryan R. Cox & Associates, LLC

Ryan R. Cox & Associates, LLC is a litigation law firm that represents individuals and families in serious personal injury and wrongful death claims throughout Missouri. We help people who have been injured in all types of accidents—including car or truck accidents, motorcycle accidents, slip and fall accidents, and much more. Whether your injury is something that can cause long-term issues like a brain injury or spinal cord injury, or it is something you’ll likely make a full recovery from, we are here to help.

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