#1
Whether included in a large contract or signed as a separate agreement, a liability waiver is a contract. An individual can assume the risks involved in certain activities either through a signed agreement or through his or her conduct (MWL Attorneys at Law, n.d.). A waiver of liability must incorporate a language to suggest that the participant has understood the potential risks of the activity and that such participation might result in an injury. Although a signed waiver of liability is accepted in courts across most of the states in the United States, some states, such as the State of Wisconsin, heavily disfavors waivers especially when presented on a “take it” or “leave it” basis. For instance, In Atkins v. Swimwest Family Fitness Center, 691 N.W.2d 334 (Wis. 2005), the Wisconsin Supreme Court decided that the exculpatory provision was invalid (MWL Attorneys at Law, n.d.). According to the Statute of Fraud, which was adopted in the United States, as common law, some contract must be executed in writing for it to be legally binding (Barnes, 2020). However, since people may make verbal promises with the intention of breaking them, the court may enforce an oral contract despite the need for a written contract in ordinary situations.
#2
Product liability is the vendor’s tort liability for any damages or injuries suffered by a buyer or use, as a result of a defective product or service. Product liability is built upon the theory of negligence, strict liability, or the breach or warranty (Wu, 2015). For a plaintiff to successfully present a product liability case, there must be some privity between him or her and the service provider. In addition, the activity by the service provider must have some imminent danger on the user. With the adoption of Section 402A of the Restatement of the Torts by the American Law institute in 1965, a service provider who offered defective products will be liable for any losses incurred by the buyer (Wu, 2015). In this case, Pete has potentially lost $10,000 as a result of Lori cutting and mulching her prize roses. Pete can employ the failure-to-warn line of cases to argue the misconduct by the company; the company did not provide any warning of potential damage. Therefore, since Pete was not in any contractual agreement with the company that could waiver her rights to compensation, she is eligible to receive compensation from the company for the damages arising from the accident. She just needs to prove that no warning was provided prior to the accident.
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#3
Lori had waivered her right to request for compensation upon signing the waiver of liability contract. Since she had signed a liability waiver before the occurrence of the injury, Brian, the owner of the company, is not entitled to compensate the employee for the injury. In this case, having signed the liability waiver, Lori agrees to surrender her rights to demand any form of compensation despite her full understanding of the potential injuries in her line of duty (MWL Attorneys at Law, n.d.). Be that as it may, Brain had made a verbal promise to protect all his employees in the event they get hurt. The promise can be considered to be a verbal agreement. As mentioned earlier, a court, in other instances, enforces oral contracts despite the requirement of a written contract as per the Statute of fraud (Barnes, 2020). Therefore, if Lori manages to prove that there was an oral agreement between her and the company owner, she will be entitled to compensation. Therefore, unless Lori provides evidence to prove the existence of an oral agreement, she will not be entitled to any worker’s compensation.
References
Barnes, W. (2020). The Judicial Admissions Exception to the Statute of Frauds. Available at SSRN 3521985 .
MWL Attorneys at Law (n.d.). Exculpatory agreements and liability waivers in all 50 states. https://www.mwl-law.com/resources/exculpatory-agreements-liability-waivers-50-states/
Wu, S. S. (2015). Product liability issues in the US and associated risk management. In Autonomes Fahren (pp. 575-592). Springer Vieweg, Berlin, Heidelberg.
