An injury liability waiver is a document, signed by a party, that releases another party from liability for harm or damage the first party may sustain. A classic example of an injury liability waiver is a form that a skydiving instruction company asks a potential skydiver to sign. In this injury liability waiver, the company states that the skydiver will undertake an inherently dangerous activity.
An inherently dangerous activity is one that can be unsafe, no matter how safe someone tries to make it. The skydiver, by signing the form, agrees that the activity is inherently unsafe, and that there is a risk of injury to themselves. The diver, by signing the waiver, agrees that, should they sustain injury due to an unforeseen risk not involving the company’s negligence, the diver will not attempt to hold the company liable. An injury liability waiver is any document signed by an individual, in which that person promises to waive potential claims against another. A claim is an allegation made in a lawsuit.
When Is a Liability Waiver Used?
Most commonly, liability waivers, sometimes called liability release forms, are signed by a person who seeks to engage in activity that has a known risk of injury. This risk, if realized, can result in damages. Damages are measurable economic losses. The activities for which liability waivers are used tend to be ones that are inherently high-risk. This means that, regardless of what measures a company takes, a chance of injury remains.
Examples of high-risk activities in which liability waivers are used include:
- Parachuting, skydiving, or other activities that are regarded as high-risk;
- Being in a construction zone where dangerous, injury-causing activities (e.g., demolition) take place
- Body contact sports, such as mixed martial arts, boxing, or wrestling.
- Activities involving handling or use of a toxic chemical or compound (e.g., asbestos).
The waiver applies to a company that a plaintiff might otherwise sue for money damages, if the plaintiff were injured. The waiver applies to a company offering a high-risk service, such as parachuting or skydiving. The waiver also applies to construction companies performing dangerous activities. The waiver also applies to manufacturers of toxic products. The waiver applies to the league or venue in or through which the body contact sport takes place.
Are Liability Waivers Legally Enforceable?
A personal injury waiver form, in which a potential plaintiff agrees to hold a potential defendant harmless if injury occurs, is considered to be a contract. As such, the document is legally binding. For the waiver to be valid, the person offering the waiver must know that they are waiving a known, accepted risk. The person must also make the waiver voluntarily. To make a voluntary waiver is to make a waiver that is the product of one’ own free will. If a plaintiff is coerced or pressured into making the waiver, the waiver will not be upheld by a court.
If a plaintiff, after signing a valid waiver, sues the individual or company whose liability it waived, that party can assert the waiver as a defense in the lawsuit. For example, a plaintiff may purchase hazardous chemicals from a company. The contract between the plaintiff and the plaintiff contains the language of the waiver. The waiver informs the plaintiff that use of the product is inherently dangerous, meaning the company has done everything it can to manufacture and design the product safely, but there is still a known risk of eye injury.
The waiver informs the plaintiff that the risk of injury can be mitigated by wearing an eye mask. The plaintiff knowingly and voluntarily uses the product without eye protection. If the plaintiff sustains an eye injury the company warned against, and then sues the company, the company can point to the liability waiver. The court with which the plaintiff filed the lawsuit will dismiss the claim, since the contract has not been breached by the company.
In some instances, a court will hold that a waiver cannot be applied. In most states, a company cannot require someone to sign a waiver in which the defendant waives its liability for ordinary negligence. This means that in a case where, for example, a plaintiff boards a roller coaster, and is injured because the coaster was negligently maintained by the amusement park, the amusement park cannot hold the plaintiff to the waiver. A defendant may also not attempt to enforce a waiver that calls for behavior that is illegal or that would constitute a crime.
Some states ban what is called a “take it or leave it” waiver. If a court finds that a company requires the waiver to be signed, offering the plaintiff no opportunity to bargain, the court can invalidate the waiver. State laws also disfavor waivers that are overbroad and not sufficiently specific. An amusement park waiver that is written to waive liability for “any injury” sustained at the park is likely to be overbroad, since the specific activities for which waiver is sought are not listed.
How Long is a Liability Waiver Valid?
The length of time for which a liability waiver is valid, depends on the way the waiver is worded. If, for example, an amusement park waiver does not state how long the waiver is good for, a court will likely find that the waiver is good only for the plaintiff’s current visit. In other words, the court will find that the waiver expires after the visit does. A court would not, in the absence of language stating the waiver would apply to future visits, hold a plaintiff to be bound by a waiver each time the plaintiff visited the park.
In addition, a liability waiver signed by a minor is considered unenforceable, and therefore is not valid in the first place. The party drafting the waiver must clearly indicate what period of time and activities the waiver applies to.
A waiver of liability, like any other waiver, can generally be modified by the parties, if they agree to do so in writing. In addition, the law of a state may override the waiver. In many states, liability waivers, if written ambiguously, will be held not to apply by a state court. The reason for this is that under state law, a party who drafts a document is responsible for making sure its terms are clear and understandable.
What Types of Damages Might be Available for Liability Waiver Issues?
If a court rules that a liability waiver does not apply, or that it is not effective, a plaintiff may file a lawsuit seeking damages for injuries. That lawsuit, called a personal injury lawsuit, requires the plaintiff to prove that a defendant acted negligently, and that the negligence legally caused the plaintiff’s injury. The defendant will be unable to assert the waiver as a defense.
Do I Need a Lawyer for Liability Waiver Help?
If you need help with drafting, understanding, or figuring out whether you are subject to a liability waiver, you should contact a personal injury attorney. An experienced personal attorney near you can review or draft the language of the waiver, explain what activity the waiver applies to, and can help you understand what are your rights and responsibilities with regard to the waiver.
