Is A Waiver Releasing Reckless Conduct Enforceable In Pennsylvania? Part One

In Pennsylvania, exculpatory clauses in contracts are enforceable if three conditions are met. First, the clause must not contravene public policy. Second, the contract must be between persons conducting and concerning their private affairs. Third, each party must be a free bargaining agent so the contract is not one of adhesion (a contract drafted by the party with stronger bargaining power and signed by the weaker party). 

As people go about their everyday activities, they have a duty to exercise reasonable care to ensure that they behave responsibly to their fellow members of society. A cause of action and the right to recover damages in a civil lawsuit may arise those times when they breach this duty, or are “negligent,” and cause harm to person and property. For someone to be held responsible for damages under the concept of negligence, a duty must exist.  

In Pennsylvania, waivers of liability for injuries resulting from ordinary negligence are enforceable. Until 2012 and 2019 respectively, waivers of liability for grossly negligent or reckless acts were not unenforceable. Today, Pennsylvania public policy prohibits the enforcement of waivers for actions of gross negligence or recklessness.

Understanding the concepts of gross negligence and recklessness under Pennsylvania law is important, especially when considering liability waivers that are signed by participants engaging in organized sports or leisure activities. Waivers and exculpatory clauses are also commonly used by healthcare providers.

The Pennsylvania Supreme Court addressed the enforceability of waivers for acts involving recklessness in the case, Tayar v. Camelback Ski, 616 Pa. 385 (Pa. 2012). It ruled that there is a dominant public policy against enforcing waivers that protect those who engage in reckless behavior from liability. However, the issue of gross negligence was left unaddressed by the court.

In Tayer, the defendant, Camelback Ski (“Camelback”) operated a ski resort that offered snow tubing as an activity. Before permitting customers to participate in snow tubing, Camelback requires each of them to sign a pre-printed release form where they agree not to sue and release Camelback from liability even if there is a later contention that such injuries are the result of negligence.

While tubing, the plaintiff, Tayer, broke her right leg requiring two metal plates and 14 screws to repair the damage. She filed a complaint against Camelback, which moved for summary judgment and was successful. Although the trial court concluded that Camelback was negligent because it sent the tubers down the hill too soon, it ruled that the waiver released Camelback from any liability associated with Tayer’s injuries.

In the second part of this article, we will detail Tayer’s appeal. Stay tuned.

The attorneys at Powell Law are distinguished personal injury attorneys who carry on a 115-year tradition of providing thoughtful, effective representation protecting and asserting the rights of Pennsylvanians living in the Scranton/Wilkes-Barre and surrounding communities. Our decades of experience make us the clear and obvious choice for representation in personal injury cases in Scranton/Wilkes-Barre and surrounding areas. Contact Powell Law at (570) 961-0777.

Is A Waiver Releasing Reckless Conduct Enforceable In Pennsylvania? Part One

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