Families and friends across the country gather at wave pools during the summer to beat the heat. Before entering the wave pool, you might have had to sign a waiver in case of an accident.
However, just because you signed a waiver does not mean you cannot file a lawsuit. Most states will only enforce a liability waiver if it is clearly constructed and defines the negligent acts for which the wave pool cannot be held liable. Thus, our lawyers can help challenge a waiver if you were injured at a wave pool. In many cases, wave pools will let children sign waivers without the signature of a parent, which will usually be unenforceable. The waiver might not be an issue in the first place if your injuries were caused by another swimmer, who can be sued in their own right.
For a free case review with our Arkansas personal injury lawyers today, contact us at (479) 316-0438.
Can I Still Sue a Wave Pool for My Injuries if I Sign a Waiver?
Filing a lawsuit after any accident is challenging, but filing one against a wave pool when you have signed a waiver is another matter. Liability waivers protect businesses that offer inherently dangerous activities by getting patrons to trade away their right to file a lawsuit in exchange for access. Essentially, it is a contract where you agree to assume the risks involved. If you visited a wave pool or a water park with one, you likely signed a waiver before entering.
While there has been debate over the years about a waiver’s validity, people’s right to make contracts pushes most courts to find that waivers are enforceable. The law takes the freedom to make contracts seriously and generally allows people to make contracts for anything that is not a crime. As such, a signed waiver can prevent significant challenges to recovering compensation.
That does not mean you should not exhaust all your legal options. A court might eventually find a waiver enforceable, but it will not stop you from filing a lawsuit. Our personal injury attorneys can review your wave pool waiver to see how likely it is to stand up in court. Most businesses, including wave pools, do not have attorneys draft their waivers. Thus, our lawyers commonly find ways to fight them so victims get the compensation they deserve.
Are There Ways to Get Around a Signed Waiver to Sue the Wave Pool?
Waivers must meet several requirements if a wave pool is going to use it to bar you from filing a lawsuit. When our lawyers review your waiver, we will look closely at the language and whether the risks were clearly defined. Perhaps the waiver was signed by your child without your knowledge. We can also argue that the waiver should be invalidated if it is against public policy. The following are the best methods to fight a wave pool’s waiver in a lawsuit:
Unclear Language
Regardless of where your wave pool waiver was signed, the language should be clear and unambiguous. Most state courts will find a liability waiver to be invalid if it does not clearly state the risks patrons will be assuming. This means that the risks should not be buried in “legalese.” The waiver should be drafted in a manner that an everyday person can understand. If it is confusing or you are unsure exactly what rights you relinquish, the waiver will likely be unenforceable.
Negligence was Not Defined
Waivers must explicitly state what conduct cannot be used as a basis for filing a lawsuit. A wave poll waiver typically lists several risks patrons should be aware of and protect against. For example, the waiver should describe the intensity of the wave pool’s swells. It will probably also have language about not being responsible for slip and falls on wet surfaces.
Basically, the waiver should cover foreseeable conditions that could cause an accident while using the wave pool. This means that if you were injured in a way that had little to do with the wave pool, the waiver would not bar a lawsuit even if signed. Perhaps you were struck in the head by an unrepaired sign while walking over to the wave pool. Those injuries would have nothing to do with the wave pool and not what you contracted for in the waiver.
Victim’s Age
Challenging a waiver based on the age of the person who signed it is another good method to invalidate it. Children are not allowed to make contracts, so a waiver signed by a child without the parent’s approval or signature will likely not be enforceable. It is common for kids to visit a wave pool with friends, but if the business allows them to sign without your knowledge, we can help you file a lawsuit.
Intentional Harm
No waiver can protect a wave pool from a lawsuit alleging intentional harm. Waivers are used to excuse negligent conduct. If the wave pool or its employees intentionally caused your injuries, that conduct would fall outside the scope of the waiver.
For example, if an employee turned the intensity of the wave pool up too high for a laugh, it would be considered grossly negligent, if not reckless, conduct. Or, you were pushed by someone into the wave pool at a spot not meant to enter it. Our lawyers can review the cause of your accident to determine if the conduct went beyond mere negligence.
Public Policy
Waivers can also be challenged on the grounds that they violate public policy concerns. For example, we might argue that since wave pools are open to the public and are particularly popular among children, public safety concerns should not allow a waiver to be enforceable.
Whether or not a public policy argument can be made will depend heavily on the state in which your accident occurred. For example, Arkansas courts will usually invalidate a waiver if it excuses negligence on the part of an essential service, like a medical care provider. Wave pools are not considered an essential service, so we will need to assess the business to see how their practices might violate public policy.
Who Can I File a Lawsuit Against for a Wave Pool Injury if a Waiver Does Not Prevent Me?
Who we file your lawsuit will depend on how your accident occurred. The most likely defendant will be the business that operates the wave pool. If so, we will need to find a way around the waiver if one was signed.
However, the waiver might not be an issue at all if we are filing a lawsuit against a third party. For example, if you were injured by another swimmer, they could not use the waiver to shield themselves from liability.
Our Personal Injury Attorneys Can Help You Get Compensation if Injured at a Wave Pool
Call us at (479) 316-0438 to speak with our Farmington, AR personal injury attorneys and get your case evaluated free of charge.