An In-Depth Look at Liability Waivers

Monday, September 18, 2017

An In-Depth Look at Liability Waivers

Written by Malman Law, reviewed by Steve J. Malman.

Businesses, organizations, and even sporting events may require their patrons to sign a liability waiver, which helps them avoid a personal injury lawsuit if an injury were to occur. The language of these waivers can vary. However, a typical waiver will state that the person agrees to waive or forego all rights to pursue legal action against the party if they were to sustain an injury on the premises.

While these waivers do contain strong legal wording, that does not mean that the courts of Chicago will automatically hold them as valid and disallow you from receiving compensation in an injury. Whether you will receive compensation or not comes down to the details of the waiver.

That is why it is important to understand what these waivers are, when you should sign one, and when they may be enforced after an injury.

When are Liability Forms Used?

Liability waivers are something you have most likely signed in the past. In fact, you might not have realized what you were signing since some of these waivers can be merely a paragraph or two – and look nothing like a full contract.

The waiver of liability is a contract that allows you to expressly assume the risk of injury in order to use the facilities, participate in an activity, or even attend an event. These instances where you might have to sign a waiver include but are not limited to:

• NASCAR and other motor sport races
• Bungee jumping
• Sky diving
• Equipment rentals
• Boat and vehicle rentals
• Ski and snowboard reports
• Unguided tours
• Animal hunting

Any organization that carries a certain amount of risk will require that the people participating sign the waiver of liability. The purpose is to protect their organization. However, in other instances it prevents people with legitimate injuries from filing a claim.

What a Liability Waiver Does Not Cover

While the liability waiver has its uses, it will not cover all scenarios. The Release of Liability waiver will not help in certain circumstances, like when a business owner or employee purposely causes an injury.

For example, a person signs a liability waiver at a rock climbing gym. But lets say that the owner of the gym was aware that the roof was in disrepair, but had not fixed it. He nevertheless allows paying customers to come into his business and climb the wall. And while climbing the wall something fell from the ceiling onto a patron and caused injury. Regardless of whether the release of liability waiver was signed – this business is still liable.

The Factors that Determine Effectiveness of a Liability Waiver

The wording of a waiver is what really matters.  If the waiver has the wrong wording or excludes specific phrases in the clause, then it may be deemed invalid. If you have been injured and you did sign the liability waiver, you might still have a case depending on whether the following pertains to your injury:

• The language of the waiver. The language of the waiver is critical. Without the right language, your waiver may prevent the party from escaping liability. If the waiver is even slightly unclear or ambiguous about any circumstances where the organization is not at-fault, the court may dismiss the waiver entirely.
• Location of the critical language in the waiver. Even if your waiver has the language necessary, the court may deny its enforceability. For example, the language cannot be hard to read or tucked away in another clause that is meant to discuss something else. If it is obvious that the clause is hidden within the contract, the court will not enforce that waiver.
• Cause of the accident. The cause of the accident is just as important. Even the best written liability waiver can protect someone, but there are specific acts that are not protected. For example, if the injury was the result of gross negligence, strict liability, or intentional acts, the courts will not allow the company to escape liability just because you signed the waiver.
• State laws. State laws also play a critical role in how your liability waiver works. If the state states that it will not be enforced as part of the statute, then the waiver will not be enforced. Most states, however, will scrutinize the waiver regardless.

Can a Waiver Excuse Negligence?

A waiver is a contract that does attempt to excuse or relieve a party from any injuries that arise out of the unknown risks of an activity. This means that the inherent risks of that activity are something you accept and cannot hold the other party liable for if you are injured.

However, the waiver will only excuse negligence if:

• The injury comes from risks stated within the release contract and they are known as risks associated with the direct activity – not irrelevant risks.
• The release is drafted and worded properly.
• The release does not violate any state laws.

The Issue of Disparity of Bargaining Power

Every contract, including a liability waiver, has the disparity in the ability of the parties to bargain and receive what they want in return. The court often realizes the inequality in the bargaining power, which means that it is insufficient to justify the state’s intervention for private agreements, including waivers.

Excusing Negligence when the Injured Party is an Adult versus Minor

When the injured party is an adult, the laws can vary.  For adult injuries, the waiver can be effective. However, in the case of a minor, the rules can change.

Laws for a minor vary depending on where you live. However, a minor is considered not legally competent enough to sign such a waiver. Therefore, they only way for the minor to be bound to the contract is that if a parent signs the waiver on their behalf.

Even then, the state does not usually allow the parent to waive the risks for their minor child.

What About the Assumption of Risk as a Defense to Negligence

The assumption of the risk defense states that a plaintiff’s right to recover is limited against a defendant if the defendant demonstrates that you voluntarily or knowingly participated in an activity that carried a risk of injury or harm.

Always Read Before You Sign

You cannot predict the future, and you cannot predict what might happen while participating in an activity. While you might want to sign that waiver to participate, consider what you are reading. Make sure that you understand every clause and omission. Know that these waivers are no longer just for sports and could be hidden in contracts for gym memberships and other activities. In fact, liability waivers are increasingly common – including in healthcare.

Be sure that you are still able to sue if that company was grossly negligent. And know the difference between the types of negligence.

Can I Sue if I Sign the Liability Waiver?

If you have signed a liability waiver, do not assume that you cannot file a lawsuit. Instead, bring the waiver over to an attorney from Malman Law. We will review the waiver and compare it to not only the statute’s rules, but case law. From there we can help determine if you can file a lawsuit.

Typically, if gross negligence plays a role, you can file a lawsuit. Therefore, it is imperative you speak with an attorney about your case.

Schedule a consultation now for free by calling our offices or by connecting with us online.