mrchad9 wrote:Differing lawyers have differing options, that's why there is always one on both sides.
True, but it's precedent that will ultimately decide who's right, so opinions and advocacy are not always worth alot.
I don't have any cites handy since I do probate and trust law presently, but out of school I did work with a firm that essentially did insurance defense and the issue of waivers came up frequently. I also acquired something of an academic interest in the outdoor liability cases since I participated in them. That was a good 15 years ago though. I'll see what I can dig up.
CClaude is right in that gross or criminal negligence may overcome a waiver, but that's a really strong standard to overcome. There was a recent decision concerning some divers who were forgotten by their dive boat and ultimately perished. That case was rare in finding liability, but only because there appeared to be actual knowledge of the missing divers and either no action or or attempts to hide their lack of action. Again, I'm speaking from a very general recollection, but the facts were pretty egregious.
By way of comparison, there was another relatively recent case in Utah where a dude offered to teach a (cute?) girl how to rock climb. He took her toproping and, since the guy didn't know his ass from a hole in the ground, threaded the top rope through a sling, not biners. Yup, when he lowered her the rope burned through the sling and she grounded and was pretty badly hurt. She sued, claiming he was negligent, but the court failed to find fault since, because rock climbing is an inherently risky activity, she assumed the risk of injury, even her partner's subsequent negligence. So, like I said, the sky is not falling.