I’m almost half way to being a US lawyer, but I’m pretty sure that such a contract would not be enforceable in the US for public policy reasons even in the scenario you describe with the restaurant patrons consulting a lawyer first.
The idea is that people need to be held accountable for negligent conduct, and as such, cannot contract away things like liability for accidental food poisoning as a result of not cleaning a kitchen.
OTOH, things that involve questionable negligence like crashing into a tree while skiing would be helped by the skier signing a statement that he understands skiing is dangerous. Even in the absence of a waiver, we don’t know if the resort is negligent.
That is different than a blanket, “We are not liable for…” statement if the underlying act is certainly one that they are liable for.
Like I said I’m talking about English law, so both these positions might be compatible. But in English law, at least, it is certainly possible to include an exemption clause in a contract which excludes liability for your own negligence. The tests for doing so were laid out in Canada Steamship Lines v R [1952], where a shed was destroyed by fire due to the negligence of the Crown’s employees whose duty it was to protect the shed (in this case the Crown didn’t meet the tests’ requirements and they were found negligent). In White v John Warwick & Co [1953] a man signed an agreement to hire a bike from a bike shop which contained an exemption clause excluding liability “for personal injuries to the riders…” for the bike shop; he was seriously injured when the saddle tipped up due to their negligence. In this case, again, the defendants were still found negligent due to the technicalities of the case (they had not drafted the exclusion clause properly to exclude negligence) but the judge confirmed it was possible for negligence to be excluded by such clauses in cases like this depending on the scenario.
In Alderslade v Hendon Laundry [1945] the exclusion clause was successful. A man brought in ten expensive handkerchiefs to the laundry and left them there to be washed. The laundry lost them due to their negligence. The parties had signed an agreement with a clause stating the “maximum amount allowed for lost articles is twenty times the charge made for laundering”, which was much less than the handkerchiefs cost. The court held the clause successfully limited their liability for negligence.
The same principle could apply for personal injury or food poisoning in a restaurant. You can indeed insert a clause saying “we will not be liable for…” something they would normally be liable for in negligence. The problem is the courts have deliberately made it very difficult to rely on these types of clauses.
I think the discussion is descending into the “broadness” clause, essentially. Yes, a ski hill can say “we have no padding on the pylons. Ski with caution. We are not liable”. (The padding storage burned up and we haven’t got replacements yet) They can ensure patrons are made aware of this clause when signing.
They cannot broadly say “we are not responsible for injuries, even due to our negligence” and then try to avoid paying if someone falls into a poorly marked open construction trench across the hill. A restaurant might be able to say “some of our products are made with Mexican produce and we cannot guarantee its salmonella-free state” but cannot say “we are not liable even if we willingly blatantly violate state health codes”.
The key is “reasonable”. If they have warned you specifically (“no padding on pylons”) and a reasonable person can avoid injury with that warning, then the judge is not going to buy the story “yeah, I was warned, but because I was stupid I want them to pay”. Avoiding trees or suffering the consequences is a typical forseeable issue in skiing. Skiing off an unmarked cliff? If the warning was specific - our routes are NOT marked and hazards like cliffs exist - maybe. A hill that’s nicely groomed, but takes a sudden right turn or else you go off the unmarked cliff? A blanket exclusion likely won’t work.
The problem is, most lawsuits are in the grey area where it’s up to judge and jury to decide if the warning was specific enough and reasonable enough.
In that case, we’re all agreed that exemption clauses can indeed exclude liability for personal injury and even negligence. Which is not what most people have been saying - the general theme has been “waivers are legally meaningless”. In English law, they’re not. I suspect a lot of US law codes are similar.
I think that would be a gray area. The Ski Resort has superior knowledge of whether it is safe at all to ski without padding on pylons. If a judge or jury would decide that it is negligent to allow patrons to ski without such padding, they could be held liable, even with the waiver.
The idea is that the skier wouldn’t be in the position to make a knowledgeable waiver of those rights, especially in a form contract that was placed in front of them. Further, the patron would have made reservations for the resort for a full week, taken time off of work, waited for this vacation for months and if he sees this clause, he will definitely have a “What the hell” attitude and sign it.
Now, if the judge or jury find that allowing skiing without padded pylons is not negligent on the part of the resort, then they are in the clear, waiver or not. A big part of these waivers is to discourage someone from even pursuing a suit because they think that the waiver makes it ironclad.
Some rights can be signed away, but not your right to recover from negligent conduct. For example, I stayed at a hotel this weekend in Niagara Falls. The hotel valet parked the car and left it off-site. The form agreement stated that the were not liable for loss due to theft, vandalism, etc. and that they were not liable for anything except their own negligence.
In that case I contracted away my common law right to sue a bailee if he returns my property in a diminished condition from which I gave it to him (car with smashed windows, stolen, etc.) Public policy has no problem with these kinds of contracts because otherwise, no place would let you park your car or else charge you hundreds of dollars to do it.
But, as the wording indicated, they still can’t contract away something that is ultimately found to be negligent conduct.
So basically, a waiver might might might protect you against a judgement but you may still spend a small fortune to do so. It’s not just the ski hill that can decide if their decision was wise, or if the skier should be able to handle that condition Or that the waiver means they were suitably warned- ultimately the judge or jury will make that call.
If the goal is to avoid big legal bills of tens to hundreds of thousands and have the suit tossed out on summary judgement or scare off people contemplating lawsuits - I assume this is the second goal, after avoiding awards of millions. The short answer is a waiver will not give you good assurance that you will avoid expensive lawsuits.