How Waiver of Liability Agreements Affect Personal Injury Lawsuits
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UPDATED: Jul 16, 2021
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Many businesses, organizations, and sports stadiums try to avoid personal injury liability by getting everyone they deal with to sign a waiver of liability—an agreement protecting them from lawsuits. The language of a waiver of liability will differ based on the industry or business, but typically, in it, one party (the customer or client) agrees to “waive”, or give up, the right to pursue legal action for injuries that occur on the property regardless of who is at fault. However, despite the strong language generally found in liability waivers, they are not always upheld and will not necessarily prevent you from being able to sue if you are injured after signing one.
Waiver of Liability Forms
A waiver of liability form is a contract in which one party expressly in writing assumes or accepts the risk of injury in order to participate in an activity or attend an event. These forms are common at:
- Sporting events
- Guided tours / animal rides
- Ski resorts
- Equipment / vehicle / boat rental
- Bungee jumping / sky diving /other extreme sports
- NASCAR races
Organizations that offer events that are inherently dangerous will usually require participants to sign a waiver of liability. By signing the waiver of liability, the participant assumes the risk of injury from the normal or ordinary risks involved in that activity. The purpose of the contract is to protect the organization offering the event from any injuries that are due to the organization’s negligence – effectively giving an injured party no right to sue.
Effectiveness of Waiver of Liability Agreements
However, a waiver of liability agreement does not necessarily prevent an injured party from pursuing legal action. If you have been injured at an event or activity that required you to sign a waiver of liability before participating, you may still have a legal case depending on the following circumstances:
- Language of the waiver: The language of a waiver of liability is critical to its effectiveness. As with any contract, liability waivers are enforced according to their plain language. A waiver that is unclear or ambiguous about the circumstances in which the organization is not responsible may not be effective. This is especially so since the law treats contracts which are negotiated between parties (that is, where they both have input) differently from ones where one party simply presents the agreement to the other side and tells them they have to sign it. When the contract was entirely drafted by one party, the law will resolve ambiguities or questions against that party—that is, the party which did not draft the agreement gets the “benefit of the doubt” about what the agreement means. However, not all waivers are ambiguous—some are very clear and definite about when the event’s sponsor or activity’s organizer is not liable. If the waiver agreement you sign clearly identifies when the other party is not responsible, it has a better chance of being enforced.
- Location of the critical language: Where the critical language that absolves an organization of responsibility is located within the waiver can be important. For example, if the language is tucked away in small font in a place where you would never see it, then a court may find that you did not intend to sign away your right to sue. Contracts generally require agreement or consent by all parties, and that goes doubly true where one party is giving up an important right (like the right to sue and seek compensation for injuries). If the critical language is hidden or unobvious, a court could conclude that the participant did not see it and therefore did not agree to give up the right to sue. And conversely, if the waiver is very clear—for example, in bold or ALL CAPS and someplace obvious in the agreement (or in its own separate and clearly labelled or titled document), it is more likely to be enforced.
- Cause of the accident: While most well-written waiver of liability forms protect organizations from acts of negligence (ordinary carelessness), there are some acts that won’t be waived. For example, intentional actions, gross (extreme) negligence, or acts that by law result in strict liability (i.e., always being liable, regardless of fault) for the organization usually can’t be waived. As stated, gross negligence is extreme negligence — more-than-ordinary carelessness. Strict liability is liability imposed by law, as a matter of public policy or legislative choice, on certain activities whether or not due care is exercised. Furthermore, if an organization makes you sign a waiver of liability, but fails to provide even the basic care that you would expect when you signed it, then the waiver could be rejected. Even regarding ordinary negligence, the organization must take the basic precautions that any reasonable person would take to avoid injury.
- State law: The most important factor as to whether a waiver of liability form will be enforced is the law of your home state. Some states view waivers with a great deal of suspicion and even dislike, and are fast to reject or not enforce them; others are reluctant to reject the agreement and take away the parties’ right to contract (and apportion risk) however they like. Because the law of waivers can vary state-by-state, if a company downloaded a waiver of liability form from the Internet, the form’s language may or may not be enforceable in that state.
A waiver of liability agreement can be very difficult to overcome, and reaching out to an experienced personal injury attorney before you take legal action can give you the best chance to succeed at recovering money for your injuries.