When you go to a go-cart racing facility, rent a kayak at the lake, or sign up for a fun run, the organizers may ask you to sign a liability waiver. Many people assume the waiver frees an organization from any and all negligent activities associated with the activity. While this may be true, you may want to discuss the enforceability of the waiver with a personal injury attorney if you suffer an injury.
Risk Management and Liability
Liability waivers enable businesses and organizations to minimize the risk associated with offering a service or product. If they know an activity could potentially cause harm and do not ask you to sign a waiver, they accept full responsibility for anything that happens to you (that isn’t clearly your own fault). The cost of doing business without waivers would put many organizations out of business. Organizations commonly use waivers to manage the risk involved in certain sports, recreational activities, and rentals.
While waivers make sense from a risk management standpoint, they can create a roadblock in personal injury claims. In California, a properly worded waiver with an express assumption of risk section and exculpatory clause could prevent someone from obtaining compensation – even if the service or product provider was clearly negligent. The state courts will generally uphold the terms of a legally binding waiver.
Case in Point: The Outcome of a Legally Binding Waiver
In 2014, the family of an injured high school wrestler tried to sue the school system for the wrestler’s injuries in R.H. v. Los Gatos Union School District. The school district, according to the plaintiff, falsified weigh-in documents and allowed the wrestler to compete against a much heavier and more experienced competitor. Without a liability waiver in place, the case appears straightforward. The school bears a duty of care to avoid actions that could reasonably increase the risk of harm to students on campus.
However, the parents signed a legally sound liability waiver and assumption of risk release. The document – something many parents sign for their children without thinking twice – served as a legal defense against liability and prevented the family from recovering damages. In signing the document, the father accepted the risks of any injuries and exculpated the school.
When Liability Waivers Fail
Not all liability waivers contain the necessary, clear, and straightforward information needed to stand up in court. A judge may rule the document invalid if evidence shows:
- The waiver includes unethical or illegal terms.
- It contains ambiguous and/or confusing language.
- The defendant’s behavior was grossly negligent or intentionally harmful.
- The defendant used fraud or intimidation to obtain the signature.
- The defendant’s negligent actions fell outside the waiver’s scope.
If the plaintiff can prove any challenge to enforceability, the courts may agree to hear the personal injury claim. Individuals can always ask for an attorney’s opinion on a liability waiver during a personal injury consultation. With a cursory glance, an attorney might find holes in the document. Keep copies of the liability waivers you sign for yourself and for your children.
What About Implied Assumption of Risk?
In some cases, defendants do not need liability waivers to brush off a plaintiff’s accusations. Implied consent or primary assumption of risk applies in cases involving inherent risk. For example, if you take a hike on someone’s rural property and fall and break your leg, the defendant might argue you accepted a certain level of risk when you agreed to walk off the beaten path. If someone should reasonably see the risk in an activity, choose to participate, and suffer an injury, a property owner may not face liability for the injury.
Talk to a Legal Representative About Liability, Risk, and Waivers
A properly written liability waiver can absolve an organization of legal responsibility, but it may not always. After any serious injury, discuss your options with a qualified legal representative. You may be able to use an enforceability argument to eliminate the waiver from the claim.