In the latest Weekly Wright Report:
- It Is All Fun and Games Until Someone’s Eye Gets Poked Out – read now
- Cyberattacks in Maryland Now Require New Notices – read now
It is All Fun and Games Until Someone’s Eye Gets Poked Out
Now that school has ended and summer is ramping up, it is time for all of the fun summer activities to kick in to full swing. For some of the more adventurous activities, you may be asked to sign a waiver before engaging in said activity. When asked to sign these waivers, we are all faced with at least one of perhaps many questions: What rights am I signing away? Will this hold up in court? What will happen if I do get hurt? The answer to these questions often depends on the state in which you are located. On top of that, the laws of the respective states can often lend themselves to very different answers. In fact, Maryland and Virginia treat liability waivers quite differently.
In Maryland, the general rule is that pre-injury liability waivers are valid and enforceable. Therefore, if you are engaging in an activity and asked to sign a waiver, it is best to assume that its terms will be enforced in the event something goes wrong. There are three categories of exceptions. First, a waiver cannot release intentional harms or extreme forms of negligence such as gross negligence. Second, a waiver will not be enforced if there is an obvious disparity in bargaining power between the parties. Lastly, the waiver cannot be part of a transaction that affects the public interest. The source of this rule, and the exceptions, is that Maryland courts do not like interfering with the rights of private parties to enter contracts with each other. As such, these exceptions will be narrowly interpreted. Courts have said, however, that the releasee must clearly set forth the waiver’s intent.
For the parents out there, it is also important to know that liability waivers that you sign on behalf of your children will also be deemed enforceable in the event the child is injured (unless an exception above applies).
Therefore, in Maryland, if you are engaging in an activity this summer and are asked to sign a release, remember that it is likely to be enforceable. On a related note, if you are a business that will be hosting activities, you should make sure to consult with an attorney to ensure that your waiver meets all requirements.
If you cross the border into Virginia, the rules suddenly become very different. In Virginia, pre-injury release provisions are considered invalid. Courts have held that public policy does not allow one to release liability for personal injury that could be caused by future negligence. Courts have recognized one narrow exception to this rule – race car driving. In the case, the court upheld a pre-injury waiver because of the inherently dangerous nature of the activity.
While such waivers are generally invalid, it does not mean party conducting the activity cannot ask you to sign one before participating. Even though the waiver will not bar a potential party from bringing a lawsuit in the event of injury, it does serve the purpose of informing the participant of possible risks and acts as a signed acknowledgment of the fact that the activity involves the risk of injury.
The laws of Maryland and Virginia highlight how different certain states can treat the interpretation of pre-injury waivers. If you are travelling this summer and planning to engage in an activity that may require a waiver or release, it is worthwhile to look and see how that state treats such waivers. Also, if you or your business is providing activities to the public, it is also important to know whether you should use a waiver or what the substance of the waiver should entail.
Cyberattacks in Maryland Now Require New Notices
by Donald Walsh
Effective October 1, Maryland has amended its data breach notification law expanding required action by businesses which have become aware of a data security breach. Maryland already requires businesses which own, control or possess personal information who have a data security breach to conduct a reasonable, prompt and good faith investigation seeking to determine if personal information has been impacted as a result of the breach. The new law clarifies its applicability to all businesses that own, license or maintain the personal information of Maryland residents and requires notification to affected individuals.
Attempting to ensure the integrity of the notice, the new law provides that the business cannot use information related to the breach other than to provide notification, protect or secure personal information, or provide notification to “national information security organizations created for information sharing and analysis of security threats, to alert and avert new or expanded breaches.” There are also limitations on whether the business can pass any costs on to those companies or owners for whom the business is holding the information.
Under current law notification of a data breach must be made to affected individuals within 45 days of when the business discovers or is made aware of the breach and to the Maryland Attorney General prior to the time notice is given to affected individuals.
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