Liability Waivers: Attempts to Avoid Injury Claims

People injured while pursuing activities with known risks sometimes find that their efforts to bring a legal claim can be challenged due to their having signed a liability waiver in advance.  It could be a ski injury, an accident at the gym or a personal injury sustained in any sporting activity.

Are waivers of liability effective?  Do they stop otherwise valid injury cases?

Business owners like the idea of liability waivers.  For example, expect to see waivers of liability in any agreement you sign with a gym, rink, racetrack or sports arena.  Sometimes such waivers are unsigned, hidden in small print on the back of a ticket or elsewhere.

Are Liability Waivers Valid?

Problem is that the law generally disfavors liability waivers, sometimes also called exculpatory contracts.  When waivers are taken to court, they’re generally approved only if certain conditions are met.

1. The waiver may not violate public policy.
2. The injured person must have understood the effect and importance of the waiver at the time of signing, or a reasonable person in their position would have understood the agreement.
3. The actual nature of the injury must come within what the parties foresaw at the time of the agreement.

Whether liability waivers are enforced or invalidated depends on state law, which varies.  Often another factor, whether the clause was conspicuous, is also considered.

Examples of Liability Waivers

When property owners and managers attempt to stop injury claims in court due to the existence of liability waivers, the results vary.  A liability waiver spelling out the “inherent risks of horseback riding” was invalidated in a case in which one participant was injured when a guide horse kicked her.  In another case a waiver was rejected where a photo model was mauled by a lion.

A New Hampshire court enforced a liability waiver in a 2009 case in which a snowboarder was hit and injured by a snowmobile operated by an employee of a ski area.  A Massachusetts Appeals Court enforced a liability waiver where a hockey player in an adult league skated into a hole in the ice and suffered a skull fracture.

The Mississippi Supreme Court struck down a liability waiver when a 12-year-old attending baseball camp was hit in the mouth with a baseball bat by a coach showing how to hit baseballs from a tee mount.  Narrowly construing the language of the waiver the court reasoned that the specific type of negligence, actions by an instructor, was not foreseen in the waiver.

Will a Liability Waiver Prevent My Injury Claim?

Generally speaking if the type of injury falls within that foreseen by the parties, courts may enforce such waivers. But public policy considerations, such as protecting minors and not protecting property owners against gross negligence are factors that can see waivers of liability rejected.

So, liability waivers can stop injury claims, but not automatically.  Your best strategy if injured where such a waiver is present is to retain an attorney to analyze the facts behind the accident and the terms of the waiver.

Photo Credit:  Brewcity Bruisers – Milwaukee Roller Girls by Matt Baran on Flickr.  License.  Thank you.

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