The Enforceability of Liability Waivers
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The Enforceability of Liability Waivers

Friday, February 23, 2018By Nina Shapirshteyn

Most people have signed liability waivers before engaging in certain activities. Many times, people don’t bother reading the fine print or questioning what the waiver covers and exempts. But if an injury happens while doing an activity with some inherent risk, like skiing, exercising in a gym, or rock climbing, it is important to understand whether you have a claim for negligence.

California Law on Liability Waivers

A liability waiver is essentially a release form. By signing a waiver, you purportedly release the business or entity from accepting liability for your injury. California law usually upholds waivers of liability if they meet certain requirements. The waiver must be carefully drafted, legible, clear in scope, and cannot waive other unrelated claims. In reality though, these types of cases are more complicated. Your ability to recover depends largely on the scope of the waiver and the facts of the particular case.

Challenging a Liability Waiver

If you are injured in an activity for which you signed a waiver, you can still challenge the validity of the waiver on a number of grounds.

  • Content. The content cannot be ambiguous or difficult to read. It must designate all parties that are being released as a result of the waiver.
  • Fraud. The party requesting liability release cannot have encouraged participation in the activity through false statements made in advertising or promotional materials.
  • A liability waiver cannot shield a defendant if he engaged in conduct that would be regarded as grossly negligent or reckless. It waives liability only for ordinary negligence.

Assumption of Risk

Even if you think you have grounds to challenge a waiver, the concept of primary implied assumption of risk could prevent your recovery. There are inherent risks that you assume in certain activities. When you attend a sporting event, you assume the risk of being hit by a ball. If you participate in a football game, you assume the risk of an injury from being tackled. When you ski, you assume the risk that another skier may collide with you. The owners of the facility and other participants generally do not owe you a duty when you participate in activities with implicit risks. Thus, the element of duty would not be satisfied and the injured party would be barred from recovery for negligence.

There are limitations to this exemption from liability. If the defendant engages in reckless behavior, he cannot assert that the risks were assumed by the person who signed the liability waiver. Also, the injury that occurs should be foreseeable. In other words, if the injury is not predictable based on the type of activity that the plaintiff was engaged in, he may have a claim.

If you or a member of your family was injured in an accident, contact Alexander Law Group, LLC. Our exceptional personal injury lawyers will be sure you get the maximum compensation possible. Call 888.777.1776, or contact us online.

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