What does it mean to do something at “our own risk”? And who is ultimately responsible when accidents do happen?
When I was young, winter officially ended with family outings to (the now closed) Wild Rapids waterslide park in Sylvan Lake or to Calgary’s Callaway Park. These amusement parks offer thrill and excitement – our bodies are placed in unnatural positions and subjected to high speeds. They are the epitome of fun.
Amusement park rides can turn these thrills into disasters. Action Park in New Jersey, the subject of a documentary, is an extreme example. Six people died during the park’s 18-year run, and countless more were injured. Action Park was once advertised as the world’s biggest water park. However, the constant stream of lawsuits led to its closure in 1996.
In Alberta, tragedy struck in 1986 at West Edmonton Mall’s Galaxy Land. A mechanical failure caused the Mindbender roller-coaster to derail. This disaster took the lives of three people and hospitalized 19 more. Catastrophes like this are rare, yet the possibility of harm is ever-present.
Reasonable notice of the waiver clause is crucial, but practically speaking, it comes down to shared responsibility. This article will examine the legal rights we give up when we enter an amusement park. What does it mean to do something at “our own risk”? And who is ultimately responsible when accidents do happen?
Safety Standards and Regulations
Amusement parks are designed to be safe. Governments regulate the operation and maintenance of these parks through a variety of means. In Alberta, standards for these rides are set by the Amusement Rides Standard Regulation under the Safety Codes Act. The Alberta Elevating Devices & Amusement Rides Safety Association (AEDARSA) is an additional, independent, body which helps to enforce and maintain these standards. This means that amusement park attractions are subject to a strict set of rules. Park owners have a legal duty to protect riders.
Accidents may be rare, but what happens when they do take place? The events which lead to the injury are always relevant. Was the rider following the rules, or misbehaving? Was there a mechanical failure, or did the ride attendant act negligently? In most instances, the legal responsibility for an injury is determined by the park’s liability waiver.
What is a Waiver?
Waivers are a common element of many contracts. They require you to consciously give up a right or privilege that you would otherwise have. In the amusement park context, guests are asked to give their consent to a subset of waivers known as “liability waivers.” They require you to give up your right to make a legal claim against a company for any injury, illness, or death that results from enjoying their services. At most amusement parks, it is mandatory to agree to a liability waiver before you get on any ride – you must either “take it, or leave it.”
Amusement parks obtain liability waivers in two main ways:
- Formal written contracts where a person signs an express liability waiver, or
- Exclusionary terms written out on a ticket, and then reinforced through notices displayed in the park. These are commonly referred to as “ticket case” liability waivers.
Formal liability waivers are typically used when the activity you wish to participate in is clearly defined. A zipline course is a good example. The owner knows that you will follow a set path through their attraction. They can carefully craft a liability waiver that considers all the hazards along the way.
In an amusement park, with multiple rides with differing risks, a more flexible liability waiver is necessary. Ticket case waivers are therefore more common. In such instances, you pay for admission to a park and are simply handed a ticket to ride on any attraction in it. Alternatively, tickets may be purchased at machines and then exchanged for entrance to a specific ride. The terms of the liability waiver will be posted on the back of the ticket and then reinforced through signage in the park.
Both types of liability waivers require that the individual agreeing to the terms understands what they are giving up. This understanding is not guaranteed by signing a document or accepting a ticket. I will focus on ticket case waivers, as they are more common in amusement parks.
Ticket Case Waivers
How do you agree to these terms and when are they binding?
The general rule that applies to all liability waivers is that the owner must take reasonable steps to inform the customer of the waiver for it to be enforceable. Printing the terms on the back of a ticket and handing it to a guest is not enough to gain the customer’s consent.
Waivers … require you to consciously give up a right or privilege that you would otherwise have. The reasonability standard is often used by courts, yet it is often unclear what the standard means. A recent British Columbia Court of Appeal decision, Apps v Grouse Mountain Resorts Ltd, is helpful in spelling out what “reasonable” notice means for a liability waiver. In Apps, the court reviews the caselaw and finds four consistent rules. These rules, with some explanation, are as follows:
1. The more onerous the exclusion clause the more explicit the notice must be.
There is a difference between agreeing to waive your right to sue for bodily harm and waiving your right to sue for loss of property. If an amusement park requires a guest to give up their right to sue for a broken neck, they must do more work to ensure that the guest knows this than if they were only asking the guest to give up their right to claim for a missing purse.
2. A waiver of [the amusement park’s] own negligence is among the most onerous of clauses.
The Apps decision states that consumers would be rightfully “taken aback” to learn that an exclusionary clause released a park from liability for its own negligence. This asks customers to legally forgive any failures of the park to uphold its responsibility for their guests’ safety. Such an exclusionary clause requires significant efforts to inform the guest of the clause.
3. The form, location and architecture of the notice are factors to be considered when assessing the reasonableness or efficacy of the notice.
This principle relates to the practical aspects of the notice. The court looks at factors such as the location and frequency of signage, how easy it is to read the notice, and whether the customer easily understands the requested exclusions.
4. Although reasonableness of the notice is an objective test, the circumstances of the plaintiff are to be taken into consideration. This includes the plaintiff’s age, level of education and previous experience with waivers of the same or similar recreational areas.
In Alberta, standards for these rides are set by the Amusement Rides Standard Regulation under the Safety Codes Act. This rule takes the amusement park guest’s personal circumstances into account. In Apps, the injured plaintiff was an employee and season ticket holder at a Whistler ski resort. The fact that he had signed a liability waiver with his employer was deemed to be irrelevant – he did not bother to read either waiver. This does not mean that ignorance is bliss. It only shows that blindly agreeing to terms at one establishment does not mean that you are also blindly agreeing to terms at another. The court did not find the personal circumstances of the injured guest in Apps to be enough to prove “proper notice” at the ski hill he was hurt at.
Conclusion
The takeaway from the Apps decision is that people who agree to liability waivers must be given clear and reasonable notice of the rights they are waiving. For ticket case waivers in particular, this means that the parks have a significant responsibility to communicate exactly what the guest is giving up.
Alberta laws and AEDARSA’s enforcement help to ensure that attractions are safe. However, it is wise to assume that the ticket you are offered is an agreement to waive your right to sue for any injury if an accident happens.
Reasonable notice of the waiver clause is crucial, but practically speaking, it comes down to shared responsibility. The park must take reasonable steps to inform you of the rights that you are waiving, but there is also a responsibility on the part of the guest to pay attention and decide whether these risks are acceptable. If a park is asking you to waive your right to sue for something as extreme as their own negligence, perhaps it is best to take a moment to reflect on whether the excitement is worth the risk.
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Disclaimer
The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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About Lee Klippenstein
