Businesses and individuals often use liability waivers to protect themselves from lawsuits. For example, an amusement park will have guests sign waivers stating they understand the nature of the activity and the inherent risks of injury.
However, some injured victims still wonder if they can still sue the business or individual even if they have signed a waiver. Suing a company or individual for gross negligence or an unenforceable waiver is possible, but numerous challenges exist. First, let’s discuss the nature and purpose of a liability waiver.
What is a Liability Waiver?
The purpose of a liability waiver is to ensure the signee cannot sue the business or individual because they had advance notice of the risks involved. If you have signed a waiver before engaging with the company or individual, their liability in case of injury is limited.
You may get hurt while engaging in the activity, but you cannot hold the entity liable for any legal damages suffered after signing a valid waiver.
The Enforceability of Liability Waivers
An injury victim could challenge the enforceability of a liability waiver based on several factors.
First, is the language of the signed waiver straightforward and easy to understand? Second, is the full scope of activities covered by the waiver when they sign it? Lastly, does the signer reasonably understand the waiver and what it means?
To be enforceable by law and protect the company or individual from a lawsuit, signed liability waivers must have these three elements.
When a Waiver May Not Protect Against a Lawsuit
An unenforceable waiver could have many issues that open the entity to a lawsuit. Here are a few scenarios where the waiver may not prevent a premises liability lawsuit.
Gross Negligence or Recklessness
A liability waiver does not protect the company or individual in instances of gross negligence or recklessness. If the conduct that caused the injury goes beyond ordinary negligence, then the liability waiver will be irrelevant. In this case, the victim could pursue an injury claim even if they signed a waiver before participating in the activity.
Intentional Acts
Most liability waivers do not cover intentional acts of harm or misconduct.
For example, if an employee at a business intentionally fails to follow safety protocols during an adventurous activity, and the consumer gets subsequently injured, the company could be liable for legal damages. The customer signing the release waiver will not prevent them from pursuing legal action.
Fraud or Misrepresentation
Waivers must be signed under reasonable circumstances of understanding. If the legal document has been signed fraudulently, it would be invalid if the signer gets hurt. Additionally, if information in the waiver is misrepresented or the individual is coerced into signing it, that legal document will not protect the company or individual liable for the harm.
Unforeseen or Unrelated Hazards
An effective liability waiver covers all possible circumstances related to the business or activity. However, unforeseen or unrelated hazards could open the entity to a lawsuit if someone gets hurt.
For example, a waiver would cover getting hurt on a ride in an amusement park accident. However, if a spilled liquid on the premises has not been cleaned and causes a fall injury, this would not fall under the terms of the waiver.
Defective Equipment or Premises
Equipment failure and premises issues are also not covered by liability waivers. If you get hurt doing an activity because of defective equipment, you could still pursue a personal injury claim for compensation.
For example, if you go zip-lining and the cable breaks during the ride, your injuries could be the responsibility of the business. Additionally, if unsafe premises caused the injuries, these circumstances would not fall within the waiver’s scope.
Challenging the Validity of a Waiver
Injured victims can still sue businesses or entities responsible for their damages if they sign unenforceable waivers. If you think the waiver you signed will be found invalid, you must know how to challenge its validity to have it dismissed. Here are a few strategies to challenge the validity of your signed waiver.
Unclear or Ambiguous Language
The company providing services must have clear language in its waivers. The document must clearly state the activity’s potential risks and known dangers and the rights of the customer being waived. Vague or ambiguous language in the contract will make it easier to challenge the waiver and hold the company liable for your accident.
Unequal Bargaining Power
The two parties involved in signing the waiver must be on equal footing. For example, if you sign a waiver under duress or with unequal bargaining power, that waiver could be challenged if you get hurt.
You may need the service desperately and will sign a waiver with any terms to get it. This scenario could represent an imbalance of power that may invalidate the document. The law states that a waiver signed under these conditions is unenforceable.
Public Policy Considerations
A waiver can only apply to certain conditions. It cannot waive the signer’s fundamental legal rights. The waiver also cannot violate public policies that would clash with the terms of the document. The person signing a waiver could challenge its validity if they believe it conflicts with public policies or fundamental rights.
Secure Expert Legal Counsel!
If you sign a waiver prior to participating in an activity and then you get hurt, it is worth researching the validity of your waiver to determine if a lawsuit is possible.
Numerous elements could make a waiver unenforceable, such as gross negligence, unforeseen hazards, vague language, or waived fundamental rights. If you suspect the enforceability of your waiver for any reason, you should contact an experienced personal injury attorney for help.
At Rosenfeld Injury Lawyers, we understand the nuances of liability waivers and what makes them enforceable. Our team will analyze the waiver to determine if it is enforceable and guide you through the filing process for your personal injury claim.
Call us today at 888-424-5757 or complete the online form to request your free legal consultation.