What is a Liability Waiver?
If you have ever participated in an activity that posed a known or inherent risk to your safety, you probably had to sign a liability waiver. Liability waivers are also sometimes referred to as releases of liability, negligence waivers, exculpatory clauses, and hold harmless agreements. Some of the most common activities that require such waivers include:
- gyms and health clubs
- trampoline parks
- zip lines
- amusement parks
- bungee jumping and skydiving
- equipment rentals
- sports leagues
- skating rinks
- skiing
- scuba diving
- boat/jet ski rentals
In general, under a liability waiver, you agree that you are not entitled to damages if you are injured while participating in an activity, even if the injury arises from the company’s negligence. The two main reasons a company or organization will have you sign a liability waiver is: 1) to document in writing that you have been warned of potential risks, and 2) to remove their responsibility for injuries that arise from ordinary negligence.
Liability waivers are usually presented in the moments just before participation in an activity, entry into a venue, or use of a service. Therefore, many people quickly sign them without actually reading them. However, it is important to read these documents carefully for several reasons. First, you need to understand the potential risks you face. If the risks are specifically outlined in the waiver, chances are you will experience them. If nothing else, reading the waiver will prepare you for the activity, which may help you avoid injuries. Second, the document will also state that signing the waiver releases the company of any injury liability. How this information is presented to you is important, as explained in scenario #2 below.
When Can You Sue After Signing a Liability Waiver?
Liability waivers are generally enforceable in the state of Washington. However, even if you sign such an agreement waiving your right to sue for a company’s negligence, you may still have legal recourse if you are later injured depending on the circumstances of your case. Liability waivers may be voidable or invalid if any of the following circumstances apply:
Scenario #1: The Waiver Violates Public Policy
A negligence waiver that could be harmful to the public may violate public policy. There are six factors to consider as part of the public policy analysis, as follows: 1) whether the activity is suitable for public regulation; 2) whether the party seeking the waiver is performing an important service to the public, such as hospitals, housing, public utilities, and public education; 3) whether the party is willing to perform the service for any member of the public; 4) whether the party possesses a significant amount of bargaining power over a member of the public who seeks its services; 5) whether the party presents the waiver to the member of the public and provides no option for the member of the public to obtain protection against possible negligence; and 6) whether the member of the public is under the control of the party.
Examples of releases that Washington courts have ruled invalid and void as against public policy include:
- A landlord’s exculpatory clause relating t0 common areas in a multifamily dwelling complex
- A lease provision releasing a public housing authority from liability for negligence
- A contractual limitation on the duty of a gas company, and
- A bank which rents safety deposit boxes exempting itself from liability for negligence.
Note that these public policy factors are complex and should be evaluated by an experienced attorney to determine whether the liability waiver violated public policy.
Scenario #2: The Waiver is Inconspicuously Drafted
For a liability waiver to be enforceable, it must contain clear and unambiguous language that is specific to the activity in question. This helps to ensure you know what rights you are waiving when you sign the document. In addition, the waiver must be obvious. It must be set apart with clear headings or captions, preferably with CAPITAL LETTERS or bold type, rather than hidden in the middle of a larger document. The waiver must also have a signature line directly beneath the relevant waiver language, and it must be clear that the signer is indicating agreement with that language specifically, rather than having a single signature line at the bottom of a contract with multiple provisions. If a waiver contains vague, ambiguous, or unclear language, or the company hides it within the contract, you may be able to pursue legal action.
Scenario #3: The Negligent Act(s) was Grossly Negligent
Even if the liability waiver is enforceable, actions that rise to the level of gross negligence could invalidate a liability waiver. Gross negligence occurs when the at-fault party exhibits extreme indifference or reckless disregard for the health and safety of the people participating in the activity. For example, a reckless or intentionally committed wrongful act that results in injury, such as a roller coaster operator who is under the influence of alcohol or drugs while in control of the ride, constitutes gross negligence. Gross negligence can be difficult to prove, and therefore consulting an experienced personal injury attorney is beneficial.
Do You Need a Lawyer for a Liability Waiver Claim?
While it’s possible that you can sue to recover damages after signing a liability waiver, proving that you have the right to file a claim can be difficult without a lawyer. The three scenarios outlined above rely heavily on the language of the waiver and the specific facts of your case. Proving one of these scenarios in a liability waiver case is often complicated, especially for people who do not have significant experience reading and interpreting liability waivers. Speaking with an experienced personal injury lawyer, like those at Becker Franklin Rovang, will help you determine the facts of your case and if the liability waiver precludes you from suing. Call us at (360) 800-3009 to set up a free consultation.
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