If you plan to enjoy a potentially dangerous activity, you will likely need to sign a waiver before doing so. Naturally, injury victims who have signed a waiver worry that they will not be able to recover compensation.
Fortunately, our attorneys can help determine if your waiver will impact any future claims you need to make for your damages. Waivers do not completely shield a business from liability. While an insurance company might use a signed waiver as an excuse to get out of paying, we can challenge the enforceability of the waiver in a lawsuit. Our team knows several ways to fight a waiver and have it found unenforceable even if you did sign it. If your waiver was unclear or was hidden in other documents, you should not lose your legal rights.
For a free case review with our Arkansas personal injury attorneys, contact us by calling (479) 316-0438.
How Will Signing a Liability Waiver Impact My Insurance Claim if I Am Injured?
Some people believe liability waivers will completely absolve companies of responsibility for an accident, preventing them from filing an insurance claim. Fortunately, waivers are not the magic documents negligent businesses hope they will be. In many cases, our personal injury attorneys find ways around them to file a claim with an insurance company or lawsuit. Whether signing a waiver will impact your claim will depend on how the waiver is drafted, the activity you were engaged in, and where your accident occurred.
Waivers are designed to inform you of the potential dangers you are likely to encounter in a particular activity. By signing one, you are making a contract with the business to take personal responsibility for any injuries you sustain in the normal course of the activity. Thus, if your own negligence or intentional misconduct caused your injuries, the waiver would likely be enforceable in most states.
A waiver might also be enforceable if you suffered an injury that was possible by virtue of the activity you were participating in. For instance, if you broke your ankle landing from a skydive, a waiver would probably prevent you from filing a claim.
However, waivers do not have an unlimited scope. They will typically not protect a business from an insurance claim or lawsuit if its own negligence caused the accident and went beyond the normal dangers called for in the waiver. In the skydiving example above, you could have a claim if you broke your ankle in a slip and fall because the operator negligently maintained the premises.
Operators of dangerous activities could also be held accountable if they had poorly trained employees. Again, if a skydiving operator did not train an employee on how to pack a parachute but let them anyway, causing a deadly accident, the signed waiver would not excuse gross negligence.
Fortunately, our team can help determine if your waiver will harm your insurance claim. In most states, you will not need to deal with the insurance company and go straight to filing a lawsuit.
What Will Make a Waiver Unenforceable if I Need to Recover Compensation for an Injury?
The best way to challenge a liability waiver is to file a lawsuit and have the court find it unenforceable. Every state has specific rules for when a waiver should be struck down, but there are some general guidelines that all waivers must follow regardless of where the waiver was signed. As mentioned, waivers are contracts, so they must comply with basic contract law. The following are common ways to have a waiver declared unenforceable:
The Waiver Includes “Fine Print”
Waivers that hide terms in the “fine print” will likely be found unenforceable. When someone signs a waiver, they must do so willingly and knowingly for it to be legally binding.
It is possible that the waiver itself is the fine print and is snuck into another document. If you did not even know you were signing a waiver, you did not knowingly and willingly sign away your rights. A business might also have misled you about the terms of the waiver or the scope of what it covers. Even if the business did not intentionally deceive you, the waiver would be unenforceable if you did not know what you were signing.
The Waiver is Unclear
Waivers must also state the terms in clear and understandable language to be legally valid. The rights being waived away cannot be buried in “legalese” that is intended to confuse the signer. Thus, the conditions and terms of the waiver must be detailed, and the dangers you will be exposed to and what the business will not be liable for in exchange for access to the activity must be specifically stated. You should not be confused or led to misinterpret the waiver by the time you are done reading it.
You should know exactly what activity you are engaging in and how accidents could occur if you are not careful. For instance, a water park waiver should describe the rides’ dangers, including the potential to slip and fall on wet surfaces or drowning.
If the terms are ambiguous, vague, or overly broad, the waiver will be too unclear to be enforceable. Catch-all terms in a waiver that excuses just about anything will not be specific enough for a court. Most state courts are usually only willing to enforce terms that they can clearly understand.
The Waiver is Unfair
A waiver can also be tossed out in a lawsuit if it is unfair. In most cases, you do not have much choice when signing a waiver. If you do not sign the waiver, you cannot participate in the activity. With this imbalance in the power dynamic between the contracting parties, courts will consider how fair the terms of a waiver are. Most courts consider unfair terms in a liability waiver to be against public policy.
However, fairness applies to both parties. For example, it is usually fair to include terms that excuse a business for ordinary negligence. However, it would be unfair to the customer if the waiver excused gross negligence. Gross negligence goes far beyond normal carelessness, typically involving reckless or willful conduct. If the business acted egregiously, public policy would not allow a waiver to excuse that conduct since all businesses would believe they could also act with impunity.
Premises Liability
A waiver will probably not protect a business that does not keep its premises in safe condition. Some activities that make you sign a waiver will be in areas that are inherently dangerous. Still, most businesses have a duty to remove known dangers and ensure their equipment is maintained and in working order.
Our Personal Injury Lawyers Can Help
Call us at (479) 316-0438 to receive your free case assessment with our Fort Smith, AR personal injury lawyers.