Releases of liability are typically included in forms individuals sign which are contracts that contain release clauses. Release forms are waivers.
By signing a waiver, an individual agrees that, if they are injured, they assume the risks associated with the dangerous activity they are engaging in. This may prevent an individual from suing the operator of the activity for injuries which occur during that activity.
A release form is commonly used for dangerous activities, for example:
- Skydiving;
- Bungee jumping; and
- Parasailing.
These types of activities are associated with an increased risk of injury because they are dangerous. The risk of injury as well as the inherent dangers associated with the activity are either obvious to the individuals participating or are disclosed to the participant by the operator.
When is a Liability Waiver Used?
A liability waiver, which may also be referred to as a liability release form, is signed by an individual who wishes to engage in an activity that has a known risk of injury, which, if realized, can result in damages.
Damages are economic losses that are measurable. The activities for which releases of liability are used are often those which are inherently high-risk, meaning that, regardless of the measures that a company may take, there is still a chance of injury.
Examples of high-risk activities in which releases of liability may be used include:
- Activities which are considered high-risk, including:
- parachuting;
- skydiving; and
- other activities;
- Being in a construction zone where dangerous and potentially injury-causing activities, such as demolition, may be occurring;
- Body contact sports, including:
- martial arts;
- boxing; and
- wrestling; and
- Activities which involve the handling or use of toxic chemicals or compounds, such as asbestos.
A release of liability will apply to a company which a plaintiff may otherwise sue for money damages if they were injured. Releases of liability may apply to:
- Companies that offer a high-risk service such as skydiving or parachuting;
- Construction companies which perform dangerous activities;
- A manufacturer of toxic products; and
- A league or venue in or through which a body contact sport takes place.
Should I Sign a Release Form?
If an individual wishes to participate in an activity which involves a release of liability, they will typically be required to sign a liability waiver. If an individual refuses to sign the waiver, the operator will likely not allow them to participate.
If an individual is not comfortable with the risks or if they are not aware of the dangers associated with the activity, they should not sign the waiver. Pursuant to the principles of contract law, the intentions of the parties regarding the release clause will be determined, as much as possible, by reviewing the agreement itself.
In some cases, a court may consider other factors in order to determine the intentions of the parties, for example, their previous dealings with one another.
Are Liability Waivers Legally Enforceable?
Personal injury waiver forms are considered to be contracts. Because of this, these documents are legally binding.
In order for a waiver to be valid, the individual signing the waiver is required to know that they are waiving a known, accepted risk. The individual must also make the waiver voluntarily.
In other words, the individual must make the waiver of the own free will. If the individual is coerced or pressured into making the waiver, it will not be upheld by a court.
If a plaintiff who signed a valid waiver, sues the individual or company whose liability is waived, that party may assert the waiver as a defense in the lawsuit. For example, suppose a plaintiff purchases hazardous chemicals from a company.
The contract between the parties may contain the language of the waiver, referred to as a release clause. This clause informs the plaintiff that use of the product is inherently dangerous, and that the company has done everything it can to manufacture and design the product safely, but there is still a known risk of injury to eyes.
A waiver informs a plaintiff that the risk of injury may be mitigated by wearing eye protection. Suppose the plaintiff knowingly and voluntarily uses the product without wearing any eye protection.
If the plaintiff then sustains an eye injury which the company warned against and sues that company, the company can refer to the liability waiver. The court may then dismiss the plaintiff’s claim because the contract was not breached by the company.
In some cases, a court may hold that a waiver cannot be applied. In certain states, companies cannot require individuals to sign waivers in which the defendant waives liability for ordinary negligence.
An example of this would be when a plaintiff rides a roller coaster and is injured because it was negligently maintained by the amusement park. In this type of case, the amusement park would not be able to hold the plaintiff to the waiver.
In addition, defendants cannot attempt to enforce waivers which call for behaviors that are illegal or would constitute crimes. In some states, “take it or leave it” waivers are banned.
If a court determines that a company requires an individual to sign a waiver and offers them no opportunity to bargain, the court may invalidate the waiver. In addition, state laws disfavor waivers which are overbroad and not specific enough.
For example, an amusement park waiver which waives liability for any injury that is sustained at the park is likely to be deemed overbroad because specific activities for which the waiver is signed are not listed.
Can I Bring a Negligence Claim if I Signed a Release Form?
In some situations, an individual may be able to sue for negligence if they are injured, even if they signed a waiver. A release of liability does not bar a negligence lawsuit when a release form is unenforceable.
A release form may not be enforceable if the state statutes do not permit waiver of liability for that activity. For example, the majority of states do not allow construction companies to be absolved of liability even if they have the construction workers sign release of liability forms prior to working.
This is due to the fact that in certain inherently dangerous situations, a defendant is still responsible for ensuring that the activity is safe. A court will not recognize a release of liability under those circumstances.
Release forms may not be enforceable if they contain language which is too confusing or complicated for individuals to understand. In order for an individual to waive their right to sue, they must understand both what the inherent risks are and what exactly the individual is waiving.
If a company does not explain this clearly or if the waiver does not make this clear to the average individual, a court may hold that the release form cannot be enforced. Release forms may also state that companies are not liable for certain types of negligence.
For example, a release for skydiving may provide that a company is not liable for inclement weather conditions. However, if the release form does not state that the individual waives their right to sue if your parachute fails to deploy, then the individual may sue the company for negligence if that occurs.
Do I Need a Lawyer to Sue if I Signed a Release Form?
If you signed a release of liability form, it may be difficult for you to show that the company can still be sued for negligence. You will likely require the assistance of a personal injury lawyer to assist you with reviewing the release form, drafting arguments, and navigating the law related to your injury.
