Are Liability Waivers Enforceable?

The term “liability” indicates fault. It refers to placing responsibility for certain conduct onto a particular party or parties – for example, in cases involving property damage or personal injury. When it comes to personal injury cases and liability, the question of liability can be a challenging one.

What is a waiver of liability?

A waiver is a type of exculpatory contract. It is used to lift responsibility from a certain party when the other contracted party was injured by certain risks (either known or unknown) related to a certain activity. Waivers cover ordinary negligence and inherent risks. The courts interpret these documents based on contract law principles. Therefore, every detail of the waiver is important, and the slightest misplaced word or comma can defeat the intended purpose of the document.

To successfully evade personal injury liability, many businesses ask customers to sign waivers of liability before entering their premises or engaging in the services provided by the business. Generally, a liability waiver document is a legally binding agreement that relinquishes the right of one party to pursue legal remedy for injuries accrued on the property, regardless of fault involved.

Common reasons for liability waivers

Liability waivers are often used to provide liability protection during events that are naturally dangerous or that require participants to take on the risk of injury. These types of events include sporting events, skydiving, skiing at a ski resort, animal rides, and bungee jumping, just to name several. The liability waiver in these cases protects the business from any legal liability if the participant or spectator is injured.

When is a liability waiver non-enforceable?

Liability waivers may be found non-applicable in certain situations. For example, a waiver may be non-enforceable if an injury occurred from an activity for which the risk was not clearly and specifically explained in the language of the waiver document. A liability waiver may also be challenged if the terms of the release of liability in the document violate particular laws or public policy.

When will the courts uphold a waiver?

The courts will uphold a waiver of liability in the following cases:

• The waiver contains proper language based on the particular state’s contract law
• The waiver does not violate public policy or any state laws
• The injury stems from risks clearly delineated in the waiver contract or from the simple negligence of the disclaiming company

In addition to known and unknown risks, the courts may also discuss the inherent risks of an activity due to the fact that every single risk cannot be accounted for prior to disclaiming liability.

Do liability waivers work in all cases?

Liability waivers are not 100% guaranteed to work in all cases. The courts evaluate various aspects of these contracts. Some of the features of liability waivers that courts will look at include the inherent risks to the activity, any unequal bargaining power, the severity of the injuries, and any conspicuous language involved.

Courts may also consider whether an act of gross negligence was involved for which the organization was not prepared, but should have been prepared. In such a case, the courts will probably declare the liability waiver unenforceable. The nature of the accident, the forethought of the organization, and the contract language all play a part in the validity of a liability waiver to a particular incident.

However, if the disclaimer is written properly and the organization disclaiming liability conducted appropriate steps to identify known dangers and protect itself otherwise, the waiver will probably apply.

If you have suffered an injury from the negligent actions of another party, our Oklahoma City personal injury attorneys at Cunningham & Mears can help you understand your legal options. We can fight to secure the compensation you are owed for your injuries and losses. To schedule a free case evaluation, give us a call today at 405.451.4029 or reach us through our contact form.