When you signed a release of liability waiver, you probably did it without anticipating the outcome. If you considered the consequences, you likely made a choice between completing your planned activities or simply walking away. Business owners take a chance that customers won’t usually turn away when confronted with that choice. As a customer, you sign on the dotted line. You anticipate enjoying your chosen activity, and you never imagine that you’ll sustain an injury.
As businesses respond to traditional and newer pandemic-related liability issues, you may see more of these simple contracts. Businesses encourage you to sign your rights away because it’s one of the few tools they have to protect themselves from unanticipated occurrences on their property. It’s unfortunate for customers, but a release of liability waiver often performs as anticipated. If you sustain an injury after you sign, it could potentially limit your legal right to recover damages from the responsible party.
What is a Release of Liability Waiver?
A release of liability waiver is a legal document. When you sign it, you effectively sign away your legal right to recover damages due to specified activities and operations. Businesses, organizations, and other entities often require that customers sign waivers before they receive a service or participate in an activity. They often include a release of liability waiver in registration forms, membership applications, and other traditional documents. One National Law Review Author suggests that businesses establish a “signing at the door” process for customers entering their premises after the post-pandemic restart.
The overall goal is to prevent or limit liability for an injured person’s damages before an injury occurs. A release of liability waiver accomplishes this goal, although the waiver you signed might have had a slightly different name. Legally, a document’s title isn’t usually a problem as long as the language meets the requirements of a valid waiver. These documents all serve the same liability-limiting purpose.
- Waiver of Rights
- Hold Harmless Agreement
- Covenant Not to Sue
Your Legal Outcome Depends on Your State
When you sign a release of liability waiver, it often eliminates your chances of recovering damages, but not always. The legal outcome usually depends on the state where the incident occurred. Most U.S. legal jurisdictions once considered liability waivers unfair. Many now uphold them to varying degrees. Enforceability in most states depends largely on whether the agreement is legal and written in clear, unambiguous language. They must also clearly state the covered activities. Many states have other enforceability requirements.
- Most states do not enforce waivers for acts resulting from gross negligence, wanton or willful conduct, or intentional acts.
- Virginia, Montana, and Louisiana prohibit agreements that waive injury-related damages.
- Multiple states prohibit enforcement of agreements that are against public policy.
- Most states do not enforce agreements signed by a minor.
- New York requires that a waiver contain the word “negligence.”
- Arizona courts hold that assumption of risk is a jury question.
- It’s considered against public policy if an employer coerces their employees into signing waivers.
A Release of Liability Waiver is a Contract
When you sign an agreement with a business, you are executing a contract. The Uniform Commercial Code describes a contract as the “…total legal obligation which results from the parties’ agreement…” To limit their total obligation, businesses and organizations often include waivers within written agreements. Even if the waiver you executed was a half-page, stand-alone document, it’s still a contract. To avoid liability, a business must prove that its waiver included the elements of a valid contract.
- Offer: The business offered a service or a product.
- Acceptance: The customer accepted the service or product.
- Consideration: The agreement involved an exchange of cash, goods, or services.
- Legal intent: The agreement had a legal purpose.
- Sound mind: The agreeing parties were mentally sound and also of legal age. When a person is intoxicated or under the influence of prescription or recreational drugs, they might be considered of unsound mind.
Business to Business Waivers
Businesses often require other businesses to execute a release of liability waiver. This is a standard when a small business wants to become a supplier or subcontractor for a larger business. A construction project is one example. A General Contractor is usually responsible for day-to-day operations but subcontractors often do all the work. To secure a job, subcontractors often sign contracts with complicated waiver agreements. These waivers protect the General Contractor from future legal actions.
- Hold Harmless Agreement
- Indemnification Agreement
- Duty to Defend Agreement
- Covenant Not to Sue
- Exculpatory Contract
If someone sustains an injury or property damage that’s related to the subcontractor’s operations, the subcontractor ultimately owes the damages. If the injured person sues the GC, the subcontractor pays their defense costs. If the court awards damages against the GC, the subcontractor indemnifies/reimburses any payments.
To further secure their legal positions, General Contractors often require a Certificate of Insurance that lists them as an insured on each subcontractor’s general liability policy. Although the legal issues vary from state to state, a waiver agreement won’t usually force a subcontractor to indemnify another business for damages due to their own negligence.
What About Warning Signs?
Some businesses attempt to waive customers’ rights with disclaimers, warning signs, and back-of-ticket notices. Others warn customers to use their facilities “at your own risk.” Disclaimers and warnings don’t hold the same legal weight as a signed waiver. As customers don’t usually acknowledge these warnings in writing, they are not enforceable contracts. They sometimes serve as evidence that an injured person assumed the risk of entering a business location.
Contact a Personal Injury Attorney
If you or your loved one sustained an injury after signing a waiver, you should consult with a personal injury attorney as soon as possible. The issues are often complicated and usually require a legal opinion for clarification. Even if a business’s insurance company has denied liability for your claim, you may still have legal options, including filing a lawsuit against the negligent business.
Give us a call today — your initial consultation is free. During your appointment, we can discuss your case and your potential for recovering damages.