New Mexico offers a variety of outdoor recreational activities for residents and tourists. These activities, such as skiing, bungee jumping, horseback riding, ballooning, rock climbing and more, have inherent dangers. Because of the risks, owners of activity companies often require participants to sign “waivers of liability” or “assumption of the risk” forms. By signing the document, the participant acknowledges that he or she is aware of the risks and is choosing to participate at his or her own risk.
These forms are designed to shield the activity operator from liability in a civil lawsuit. They typically state that the participant may not seek compensation for losses if he or she is injured while taking part in an activity, even if the injury was caused by the company or its staff. Don’t believe it. If you’re hurt, call Bert. Liability waivers do not always hold up in court.
What is a Liability Waiver?
You’ve probably agreed to more liability waivers than you realize. They are required to participate in many activities. You may have to sign one to send your child to school or day care, or to work out at a gym or fitness facility. If you go to watch a ball game or ride rides at an amusement park, there’s probably a liability waiver printed on the back of the ticket.
A liability waiver is an agreement between a service provider and a consumer that the provider will be relieved of legal responsibility for injuries suffered by the consumer while engaging in the activity. While the consumer has a right to hold the provider of an activity, the owner of a facility, or a trainer or instructor liable for injuries in certain circumstances, the consumer waives that right by signing the agreement — or simply by using the ticket.
Do Liability Waivers Hold Up in Court?
A dangerous activity owner or operator cannot completely contract away liability. What is deemed to be an “inherent risk” to an activity can become a subjective rather than an objective question.
The validity of a liability waiver depends first on how well they are written. Courts interpret liability waivers according to contract law. Improper wording, or a misplaced clause or comma, can leave an agreement open to interpretation.
Typically, to be upheld, a liability waiver must:
- Not violate state laws or public policy,
- Be properly worded according to New Mexico contract law, and
- State risks that actually led to the injury stated in the contract or disclaimed (sought protection from) the provider’s simple negligence.
In the end, many challenges to liability waivers come down to the quality of the waiver and the mood of the court.
A negative for the consumer in New Mexico is the state’s propensity to enact laws that protect service providers by industry. The state’s Equine Liability Act (N.M. Stat. Ann. §§ 43-12-1), for example, says “no person, corporation or partnership is liable for personal injuries to or for the death of a rider that may occur as a result of the behavior of equine animals (horses, ponies, donkeys, mules) while engaged in any equine activities.”
Equine activities include horse shows, fairs, competitions, rodeos, performances or parades; riding lessons; boarding; riding a horse belonging to another; rides, shows, clinics, trips, hunts or other equine occasions; and horse racing.
Another such law is the Ski Safety Act (N.M. Stat. Ann. §§ 24-15-1), which protects New Mexico’s ski resorts industry.
New Mexico Ski Safety Act & Serious Injuries
New Mexico’s Ski Safety Act makes ski operators responsible for maintaining the resort’s lifts and tramways in safe operating condition, but it puts responsibility for skiing safety on the individual skier. Operators also must carry insurance, maintain a ski patrol, and post appropriate warnings and notices. If a skier contributed to his or her own injury, the operator can only be held liable if there was negligent operation, maintenance, or repair.
It can sometimes be difficult to tell whether an injury occurred as a result of operational negligence or the fault of the skier.
Can You Sue After Signing a Waiver?
In Wood v. Angel Fire Ski Corporation, a woman riding the chair lift hopped off the lift and became stuck, with her crossed skis remaining in the path of oncoming chairs and skiers. According to the woman’s complaint, the lift operator observed her situation but instead of stopping the lift, only shouted for her to move out of the way. As the woman fell forward to get out of the way, she severely injured her knee. The woman had to have three knee operations and extensive physical therapy as a result of the injury.
The woman filed suit, alleging that the ski lift operator acted negligently by failing to stop the chair lift so that she could move safely out of the way. The ski operator denied that the chair lift was operated negligently and argued that the injury was a result of the skier’s own negligence. The ski operator moved for summary judgment under the Ski Safety Act and received it at the trial court level.
The Court of Appeals agreed with some of the lower court’s decision, but reversed it in part. The court determined that there was a genuine issue of material fact for a jury to decide whether the operator was negligent. In its determination, the court considered other cases from Colorado and New York, where ski operators were liable for injuries after failing to stop ski lifts. Based on this, the Court of Appeals reversed the summary judgment on this issue and sent the case back to the trial court.
Operator Liability in New Mexico
Accidents originating from dangerous recreational activities may result in severe injuries. This makes it is important to have an aggressive, experienced litigator by your side to hold operators and owners accountable if you have been injured while skiing, horseback riding, rock climbing or other recreational pursuits at a resort or other private facility in New Mexico.
The New Mexico serious injury attorneys at the Parnall Law Firm, LLC have the personal injury knowledge you or a loved one needs to pursue an injury claim and seek the full recovery available under the law. For a free, confidential consultation, contact our office today at 505-985-5355.