Waivers of liability do matter!

I found the following interesting because of my interest in Animal Law, and because it shows that the waivers we sign when we participate in activities really matter! I have been asked to sign a liability waiver when participating in horseback riding and rafting, among other things.

I have read the actual decision in this case, and quite frankly, if there was ever a justification for invalidating a waiver, they would have found it in this case. There was some pretty obvious negligence on the part of the facility owner; a previous history of attacks; and some statements that could have been construed as misrepresentations to the victim. Nevertheless, the court upheld the waiver.

As an aside, I worked on a project with a woman a few years ago who is now a Washington Supreme Court justice. She told me that whenever she was asked to sign a liability release or waiver on behalf of herself or her children, she always crossed out the parts she found disagreeable, such as parts that allowed a release of liability in the case of gross negligence. Apparently, she was never refused the ability to participate anyway.

Court: Intern can’t sue Ore chimpanzee sanctuary

Aug. 9, 2012, 5:52 p.m. PDT

AP

PORTLAND, Ore. (AP) — The Oregon Court of Appeals upheld a ruling that an intern whose thumb was bitten off by a chimpanzee four years ago can’t seek damages from the sanctuary that employed her.

The appeals court ruled Wednesday that Kristen Howard gave up her right to sue Chimps Inc. because she signed a release of liability before starting her unpaid internship at the Tumalo-based nonprofit facility.

Howard, an anthropology major when she took the internship, sought $28,000 for medical expenses and $800,000 for permanent injuries and distress.

She could not be located for comment Thursday and her attorney Thomas Christ didn’t return a phone message seeking comment.

Chimps Inc. referred questions to its attorney, Graham Sweitzer. He said he couldn’t comment on the ruling until he’s sure the case is not taken to the Oregon Supreme Court.

The ruling affirms a 2010 decision by Deschutes County Judge A. Michael Adler.

Lesley Day opened the sanctuary in 1995 as a home for chimps that once lived in roadside zoos or worked in the entertainment industry. Jane Goodall is a member of its advisory board, and the facility is not open to the public.

Howard was only 10 days into her internship when she was attacked while cleaning a cage that had been unoccupied. The cage, however, was connected by overhead tunnels to places were chimps were present. A chimp named Kimie found its way into the cage and jumped on Howard’s back, biting her several times before fleeing. Kimie resumed the attack after Howard left the cage and tried to return to her living quarters.

The Bulletin newspaper of Bend reported in 2004 that Kimie had arrived at the sanctuary after an emergency rescue in Lebanon, Ore., near Corvallis.

Howard’s lawsuit claims the sanctuary was negligent in failing to secure the doors to the cage, failing to control Kimie before and after the first attack, and in minimizing the dangers associated with chimpanzees.

The appeals court found that chimps at the sanctuary attacked humans seven other times between 1995 and 2009. In three cases, the victim totally or partially lost a finger or thumb. The court noted, however, that several attacks occurred while people were disregarding the sanctuary’s safety policies and not one was analogous to Howard’s situation, in which a tunnel door was left unlocked.

“The history of attacks, while not insignificant, is less damning than plaintiff would have it,” the court opinion states.

The appeals court opinion includes information about the Chimps Inc. operation. It states officials have policies designed to shield the sanctuary from scrutiny. For example, the manual provided to interns includes a nondisclosure agreement that prohibits interns from discussing what they have seen or heard regarding the inner workings of the sanctuary.

“It is difficult for people outside of the sanctuary to understand certain issues (e.g. injuries and escapes),” the manual states. “It spreads gossip that inevitably will create a distorted representation of the animals and the sanctuary.”

The manual warns interns that chimpanzees have extreme speed, agility and upper-body strength, and are intelligent and manipulative. It states that “disregarding the boundaries between you and the chimp can cause bodily harm,” and any injury is “obviously” due to human error.

The sanctuary’s training manual states that 9-1-1 is to be called only in a life-threatening situation, and only Day and two other officials are authorized to make the call. The court opinion says when another intern phoned 9-1-1 after Howard was attacked, Day said: “‘Who called 9-1-1? It’s just your thumb.’”

Day acknowledged the restriction on calling 9-1-1 is intended to avoid “unnecessary scrutiny over safety concerns,” the court document states.

Though chimpanzee attacks remain rare, there have been a few high-profile cases in the years since Howard was bitten. A Connecticut woman needed a facial transplant after a neighbor’s pet chimp attacked her in 2009. This summer, a St. Louis graduate student was mauled by chimpanzees while giving a tour of their South Africa sanctuary. He lost both ears, his left arm and toes.