Is Your Liability Waiver Enforceable?

Most people have signed a liability waiver at some point in life. It is normally signed prior to you or your child participating in some type of potentially dangerous or hazardous activity. But exactly what risk are you accepting and what rights are you waiving? The answer to these questions are not as clear cut as you may expect. Understanding what a liability waiver is and when will it may not be upheld may help you if you are ever injured in an accident at a place where you have signed one.

What Is A Liability Waiver?

A liability waiver is simply a document that you sign stating that you are aware of the risks of the activity you are planning to participate in. They are usually required by organizations or businesses because the organizer of a certain event or activity is attempting to transfer any risk of accident or injury to you. Liability waivers are commonly found at the following places:

• Schools
• Organized sporting events
• Extracurricular activities
• Gyms, and other places

While these waivers are most commonly required to be signed by the participant or the guardian of the participant in an activity, you may also be required to sign a waiver even if you are going to be a spectator. 

When Is A Liability Waiver Not Enforceable?

Even if a waiver is presented and signed, there are times when they are not enforceable and may not even be legal.

When it is not supported by state law - Liability waivers are grounded and based on state law, and depending on the state that you signed the waiver in, the state courts may or may not enforce the waiver. States have been broken down into four basic categories. They are as follows:

• Strict Standards - These states that have strict standards are those that have strict interpretation of contract law. This will normally result in them upholding a valid waiver. 
• Moderate Standards - These states look for certain language to be included within the waiver. They will normally uphold a waiver if they are written in the fashion preferred by the state, but are open to deciding them based on the defense or argument presented.
• Lenient Standards - These states are less likely to uphold a waiver based on the contract language alone. The courts are more likely to make a decision based on the merits of the case being presented. 
• Not Enforced - In three states, waivers are not enforceable at all. These states are Louisiana, Montana, and Virginia.

It needs to be noted that although a state has been classified one way or another, not all waiver cases that go in front of a court in that state will be decided that way.

In the case of gross negligence -  There is a difference between ordinary negligence and gross negligence. Ordinary negligence is the failure to use or provide reasonable care. An example of this would be letting people use broken or faulty equipment that has not been repaired.

Gross negligence is the voluntary failure to use care in a situation that could cause significant injury or harm to a person, property, or both. This often occurs when the operator, owner, or facility has a blatant disregard for the safety of their clientele or customers. 

This distinction becomes very important when you are challenging the enforcablity or legality of a waiver. While an organization may be able to argue that broken or faulty equipment is an assumable risk, gross negligence can never be assumed or waived away.

When it is signed for a minor - In most states a child under the age of 18 is too young to sign a contract. This means that they are unable to sign their own waiver and will require you as a parent to sign the waiver for them. But many states have ruled that a parent is unable to waive, or sign away their children's rights to sue. This of course varies by state.

Even though you may sign a waiver prior to your child participating in an activity, you may be able to come back and sue to be compensated for the accident. Your child may also have this right once they reach the age of 18.

If you, or a family member, have been injured in an activity in which you have signed a waiver, don't just assume that you do not have a personal injury case. This may not be true. You need to immediately contact an experienced and knowledgeable personal injury attorney or click here for more info. Once your attorney reviews your case, they will be able to discuss whether or not the waiver you signed may be enforceable in the court of law in your state.