Rock Climbing and Liability Waivers
Rock climbing is a popular physical activity for adults and kids alike. It includes treks up the side of mountains, although more commonly now rock climbing involves plastic walls on schoolyard playgrounds. As more people venture onto these man-made mountains, the number of falls and injuries increase. In response to these incidents, the U.S. Consumer Product Safety Commission (CPSC) has issued several warnings about the maintenance and security of these structures. When responsible parties do not follow the suggested guidelines, a court may find them held responsible for any injuries that result.
According to the CPSC, rock climbing walls are responsible for numerous serious accidents. One Missouri woman reportedly died after falling from a mobile wall onto a concrete floor. An investigation reportedly uncovered a corroded cable as the reason for the fall. In Florida, a two-year-old was seriously injured after falling from a small rock climbing wall on a local playground. Investigators allegedly found that the structure lacked adequate padding at the bottom. The child suffered severe leg fractures from the incident. Another local accident occurred when a woman reportedly fell from the climbing wall at a Florida Marlin’s event. When her safety harness allegedly failed, she fell onto the floor, where there was no padding. She reportedly suffered a concussion and various bruises.
In an attempt to avoid liability, many rock climbing facilities and event managers require participants to sign a liability waiver. These contracts generally include:
- An explanation of the possible danger involved in rock climbing. While the statement is usually general, it needs to plainly address the highest level of risk undertaken by the participant.
- An exculpatory clause that explicitly releases the company from any liability, whether general or specific.
- A signature line for the participant. By signing, they agree to waive their rights to file a lawsuit in case of injury.
While rock climbing facilities use liability waivers to shield them from any financial responsibilities, they must still withstand the scrutiny of the Florida courts when lawsuits are filed. In Straw v. Aquatic Adventures Management Group, Inc. the court determined that liability waivers are generally valid, as long as the intention is clear and unambiguous. With language about the risk involved and the company’s freedom from liability, the waiver is presumptively valid and the court will uphold it.
However, even with all proper clauses, the waiver at the center of the case was invalidated. The court found that waiver was not a valid shield for acts of negligence per se that result in injury. Negligence per se means that the responsible party did not follow specific regulations that are put in place to protect participants. If the courts find that a rock climbing company did not follow the regulations and an injury resulted, any liability waiver may be invalidated, allowing for a monetary award. Arguing against a liability waiver is a challenging endeavor and the work of an experienced lawyer is vital for success.