Leann Spencer visited ACE Adventure Waterpark in Minden, Fayette County, West Virginia on June 12, 2024. She signed a broad liability waiver before entering, then jumped onto the "blob" — a large inflatable attraction — from a platform approximately six feet above it. According to her complaint, no employee was providing directions on how to use the attraction, no second patron was positioned on the far end of the blob as required for safe operation, and she landed feet-first rather than on her back or side. She allegedly shattered both ankles and underwent multiple surgeries and extensive rehabilitation therapy to be able to walk again. She sued Mountain Cove, Inc. and American-Canadian Expeditions, Ltd., the entities that own and operate the park.
Defendants moved for judgment on the pleadings, arguing the waiver was valid, covered the risks at issue, and was freely entered into by parties of equal bargaining power. Judge Joseph R. Goodwin of the U.S. District Court for the Southern District of West Virginia denied the motion.
The dispositive question was whether West Virginia's recreational water facility regulations — found in West Virginia Code of State Rules § 64-16-1 et seq. — impose a standard of care on operators that patrons cannot contractually waive. Judge Goodwin held they do. The regulations require certified lifeguards on duty at all times, adequate safety signage, proper maintenance of equipment, and operator supervision of patrons. A state official may order immediate closure of any facility where conditions endanger patron health or safety.
Spencer alleged that Defendants violated several of those specific provisions: W. Va. Code R. § 64-16-9.3 (operator supervision), § 64-16-9.4 (required rule signage), § 64-16-10.4 (equipment maintenance), and § 64-16-5.4a (closure of dangerous conditions). The court held that because those regulations establish a standard of care designed to protect patrons — the class to which Spencer belongs — Defendants cannot contract away their tort liability for failing to meet that standard.
The court drew on the West Virginia Supreme Court of Appeals' decisions in Murphy v. North American River Runners and Finch v. Inspectech, LLC, which together establish that exculpatory clauses are unenforceable as against public policy when a statute or properly promulgated legislative rule sets a standard of conduct for the protection of a defined class. Judge Goodwin extended that framework to the recreational water facility regulations, finding them to be legislative rules promulgated under specific statutory delegation of authority in W. Va. Code §§ 16-1-4 and 16-1-6.
Defendants relied on Lutz v. Turner Broadcasting System, Inc., a Northern District of West Virginia decision that enforced a similar waiver after an inflatable-slide injury. Judge Goodwin distinguished Lutz on the ground that the court there did not analyze whether the waiver conflicted with an applicable safety statute — the parties had not raised the issue and the court could find no applicable statute. The opinion notes, in a footnote, that this is unsurprising given that the activity in Lutz arose from a temporary promotional event set up near a local mall, making it unlikely that any specific regulatory scheme would govern it. The permanent, state-regulated water park at issue here is materially different.
The court declined to reach the parties' arguments about unconscionability, bargaining power, or the scope of risks contemplated by the waiver, having resolved the motion entirely on the regulatory standard-of-care ground.