Have you ever wondered just how effective a liability waiver is? One such ruling on a waiver was recently made by the United States District Court for the Middle District of North Carolina in the case of Thackurdeen v. Duke University.
The federal court analyzed a liability waiver under North Carolina law that was issued by Duke University and a college study abroad program, the “Global Health Program,” after a tragic accident in 2012, involving Ravi Thackurdeen who was enrolled as a student in the Global Health Program in Costa Rica.
Ravi and other students had gone to the beach to celebrate the end of the program when he drowned in a rip current. His parents sued Duke and the Organization for Tropical Health (OTS), the program in which he was enrolled while participating in the Global Health Program. In the suit, his parents claimed both parties were negligent in what they felt was the wrongful death of their son.
Both Duke and OTS claimed they were not liable due to the waiver Ravi’s father signed prior to Ravi’s trip. He signed a “Statement of Authorization and Consent” for Duke and an “OTS Participation Agreement.”
The language of the waivers
Language in the Duke waiver said that the signers understood that participation in the program was voluntary and that there were some elements of risk involved. It also stated that the signers agreed not to hold Duke responsible for “any injury or loss to person or property the student might sustain in while participating,” and that Duke was released form “any liability whatsoever” for “any personal injury…arising out of participation in the program.”
Under a section of the OTS waiver, “Release, Assumption of Risk, Waiver of Liability, and Hold Harmless Agreement,” it stated that in exchange for allowing Ravi to participate in their own and Duke’s program, Ravi released, waived, discharged, and pledged not to sue either one “for any liability, claim and/or cause of action arising out of or related to any loss, damage, or injury, including death that may be sustained by me . . . that occurs as a result of my traveling to and from, and participation in this activity." It also stated that Ravi agreed to indemnify and hold harmless Duke and OTS whether injury was the result of Ravi's negligence, Duke's or OTS' negligence, or the negligence of any third party. The OTS Waiver also included an express provision that the waiver should bind the members of Ravi's family and Ravi's heirs if Ravi was deceased.
How did the Court rule?
The Court did not feel that the unplanned beach trip was outside of the scope of the activities as Ravi’s parents had claimed. It stated that such an activity could take place during the trip, even though it was unplanned and not part of a regular class, lecture or field trip. It therefore ruled against Ravi’s parents.
In analyzing the language of the waivers, the Court did not feel they were written in a way that exempted certain activities and that the unplanned beach trip was, nonetheless, a program-sponsored event and part of the program activity that was addressed in the waivers.
The Court made it clear that the manner of death was considered as well, and that although they ruled in favor of Duke and OTS, they did not blindly enforce liability waivers and carefully studied the language of the waivers to determine the scope of liability.
The sad reality is that some activities do have certain risks involved and that all parties, participants and providers alike, need to carefully assess the waivers they either sign or create.
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Group Matrix Blog – August 21, 2018 – by Sharon Bowles
