Can A Waiver Keep You from Suing for an Injury?

Liability waivers are a fixture of participation in many activities, as they are often required to get on a ride or attend an event. Waivers are intended to prevent the company or entity providing the service in question from being held responsible if an injury occurs during the activity you are signing up for. If you get injured, it may still be possible to sue, depending on how the waiver is written and how the injury occurred.

Waivers have specific requirements they need to meet to be considered enforceable by the court. They must have clear language that specifies what rights you are waiving. Generally, waivers cannot waive all claims forever, but must have some specificity for what is being addressed. A waiver must be signed voluntarily, so if you were forced into signing the waiver may not be valid. Also, you must get something in return for signing the waiver. In most circumstances what you receive is the ability to participate in the activity itself, but if you are asked to sign the waiver after the activity or injury occurs, the waiver may not be valid.

There are also restrictions on what a waiver can waive liability for. While it is often possible to waive injuries arising from an activity, waivers cannot always waive injuries caused outside of said activity. For example, if you sign up for a basketball tournament, a waiver can probably waive any liability for an injury picked up while playing, but not necessarily if you get food poisoning from concessions afterwards. There can also be certain circumstances where waivers are considered unenforceable, such as when the waiver involves essential services. Another way for waivers to be deemed invalid is if they are extremely imbalanced. While companies often draft these waivers with no intention of negotiating, the court may not accept a waiver that is blatantly one sided. You can only waive so much, and if a waiver disclaims too much, it could be thrown out by a court.

Additionally, as a general rule, gross negligence or intentional misconduct cannot be waived. It is in the public interest to prevent these types of extreme mistakes or intentional actions, which is why disclaiming liability based on gross negligence or intentional misconduct is disfavored under the law. However, these circumstances also require extreme error or intent, which is rare, even in the context of dangerous activities. Because liability waivers often depend on the specific facts of your case, it is important to talk to a professional. Don’t assume that because you signed a waiver, recovering for injuries is not ever possible.

This McNeelyLaw LLP publication should not be construed as legal advice or legal opinion of any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.