30 Jul Paradise Cove – Is it a Public Nuisance?
This summer, two people tragically lost their lives at Paradise Cove and our thoughts and prayers are with their families. As a result of these two deaths, the attorney general filed a lawsuit against Paradise Cove to shut it down while they deal with safety concerns. Paradise Cove, formerly called the Offsets, is a popular Missouri swimming destination in Madison County, MO. The lawsuit alleges Paradise Cove is a “public nuisance” and a threat to public safety. No arguments from me on those points. But will the families for the two deceased patrons be able to recover for their harms and losses since the two deceased patrons probably signed a waiver of liability? Keep reading below for my thoughts.
My wife and I went to Paradise Cove last year with a few friends and had a good time. We did, however, note the risk for injury and for things to quickly go south. The water was deep in parts which was nice, but alcohol and jumping off cliffs leads to the possibility of something bad happening quickly. I jumped off one of the cliffs with my heart beating out of my chest thinking it was a terrible idea. What kept me from chickening out was the thought of getting ridiculed by everyone around me. I am certain this is not the only instance of peer pressure experienced at Paradise Cove. Thankfully, my wife was waiting below with an inflatable for me to immediately grab and rest upon.
Paradise Cove may not be in the clear even though they had a waiver/release. Missouri law expressly prohibits releasing others from liability for conduct that is willful or intentional, grossly negligent, or involves the public interest. See e.g. Khulusi v. Sw. Bell Yellow Pages, Inc., 916 S.W.2d 227, 230 (Mo. Ct. App. 1995). Courts could hold a release or waiver unenforceable, even though the party voluntarily signed the contract or release. The court will strictly construe a release/waiver against the drafter the of the agreement. Other reasons a court may invalidate this type of agreement is if it is not explicit and clear enough, if the clause is hidden within the document or if the court finds the agreement unconscionable. This is just contract law, but pertinent to this situation.
We will keep track of this litigation against Paradise Cove. Thank you for reading.
Tarun B. Rana, Esq.
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