Liability waivers, releases of liability, exculpatory agreements – whatever you want to call them, their purpose is to keep people from suing after an injury. Many companies and businesses use waivers to protect them financially, but they often come at the cost of their customers’ and guests’ physical safety. If you signed a waiver and then got hurt, you might now be wondering whether that waiver is actually enforceable and whether you can sue anyway.
Generally, waivers are allowed to be used, which means they are definitely enforceable in some cases. However, not every waiver is written well or clearly agreed upon. If a waiver fails to use explicit language explaining that it is a waiver, it might not be valid. Additionally, people usually need to know that they’re signing a waiver, and waivers buried in fine print might not be valid. There are also specific rules that might change enforceability in different states.
For help after an injury, contact our personal injury lawyers today at (479) 316-0438.
Freedom of Contract
One of the first issues with whether a liability waiver is enforceable or not is the concept of freedom of contract. Parties are generally allowed to make contracts requiring them to do things or preventing them from doing things. All of this is based on the idea that they are adults voluntarily agreeing to the terms in front of them, so they should be allowed to make contracts.
When it comes to analyzing liability waivers, this freedom of contract principle usually pushes courts to find that they are indeed enforceable. However, when other considerations push back against this freedom, different issues of fairness might be considered, and the waiver could be thrown out.
3 Things That Make Waivers Harder to Enforce
Our Springdale, AR personal injury lawyers can analyze the specific waiver in your case and help you determine whether it might be effective and actually bar you from being able to sue after an injury. When analyzing waivers, courts and lawyers usually look at three major points that can cut against the waiver’s enforceability:
Language
Waivers usually need to have explicit language saying that you release the defendant from liability or that you waive your right to sue or that you “exculpate” them from liability. A lot of this language is a bit antiquated and formal, and it might be hard for normal, everyday people to understand. If that is the case and an average person would not be able to tell that this is a liability waiver, then it might not be valid.
However, many companies and businesses know this rule. That is why they have lawyers review their liability waivers and use language that they can be pretty certain will produce an effective waiver. Because of this, you should consider having our lawyers look over the waiver before you sign it. In some cases, you might even be able to negotiate to have the waiver removed from the contract, depending on the circumstances.
Some states, like Arkansas, also have requirements for laying out what liability, specifically, is being avoided by the waiver. We’ll elaborate more on this below when discussing the scope of the waiver.
Obviousness
The waiver also needs to be somewhat obvious, or else you might not really know you are signing a waiver. If you do not know you are signing a waiver, then how could anyone say you were actually agreeing to the terms in the first place?
If a waiver is part of a document with a big header that says something like “Liability Waiver,” a court would likely find this is clear and obviously a waiver.
Public Policy Considerations
Case law often rejects waivers that go against certain public policy considerations. For example, waivers needed to access public services and accommodations usually are not allowed. For example, you could not require everyone getting on a public bus to sign away their rights first.
There are also often considerations regarding who can waive liability, whether liability can be waived for accidental death, and whether waivers can be enforced for more than just accidents. With this last point, many states agree that waivers are not enforceable to prevent lawsuits for gross negligence, recklessness, or intentional actions – but the controlling law is up to each state individually.
Exceptions That Allow Lawsuits Even When a Waiver Was Signed
As with many of the considerations above, the specific language of the statute, the specific situations involved, and the people involved will all make a big difference in whether a waiver is enforceable – and so will state law. Even so, courts can often investigate the following issues, potentially barring a waiver from applying:
Scope of Waiver
Waivers are only effective at blocking lawsuits from the conduct in question. Under Arkansas law, for example, the liability waiver has to explicitly state what negligence the waiver affects. For example, when renting a piece of machinery, the waiver might state that the party letting out the machine is not responsible for negligence arising from user error or from maintenance problems with the machine.
An example of this issue of scope could be something like a waiver for a spicy chicken wing eating contest releasing the restaurant from liability if you get sick from their wings. It would be specific to that issue and would not release the restaurant from liability if the waiter spills hot coffee on you or if the whole building crashes down around you.
Waivers Involving Children
Some courts are reluctant to enforce waivers involving injury to children. Children cannot agree to contracts, so it is usually their parents signing away the child’s rights, and there is a valid question as to whether that should be allowed. In some states, waivers preventing lawsuits for the death of a child are outright barred.
Public Access to Necessities
As mentioned above, waivers are often banned if they would protect a provider of a service that the public needs. Courts usually will not let people sign away their rights just to access necessary services. While you might be able to sign away your rights to access something voluntary and unnecessary like skydiving, they usually do not allow waivers for something like riding the bus to work or getting medical care.
Call Our Personal Injury Attorneys Today
Call our Fort Smith, AR personal injury lawyers for a free case review by dialing (479) 316-0438.