One of the ways parties with injury liability exposure try to shield themselves from claims is by asking people to enter into liability waivers. This is a common practice at many experience-oriented businesses, such as concerts and amusement parks, although any organization might try it.
How well do liability waivers hold up in court, and can they really prevent you from pursuing a claim? Personal injury attorneys usually aren't impressed by waivers, and that's the case for the following three reasons.
Waivers Can't Cover Gross Negligence, Intent, or Malice
A major reason a waiver might not hold up is gross negligence or malice. It is sometimes possible to waive injuries arising from predictable scenarios. A nightclub that has a mosh pit, for example, may be able to defend a waiver if someone is hurt while participating in normal crowd activities. The same nightclub almost certainly couldn't defend the waiver if people were injured while stampeding in an area with insufficient exits. This is because not keeping proper safety protocols up to regulations is a form of gross negligence.
Similarly, malicious or intentional harm is hard to waive. Suppose a haunted house offered an extra scary and rough experience with actors getting hands-on with visitors. If an actor deliberately shoved a visitor out a window or down the stairs, it's going to be hard for the business to enforce the liability waiver.
A waiver is a contract condition. Like any contract, a waiver has to include good consideration. In other words, the two parties must exchange things of value for the waiver to be enforceable. Suppose you went to a manufacturing business for a free consultation—they might have you sign a waiver, but the enforceability is questionable if you didn't get anything in exchange for signing.
Similarly, a business that offers non-waiver services needs to offer something different than it does to the folks who sign waivers. If nothing differentiates the two services, a personal injury lawyer is going to question the force of the waiver.
Full Disclosure and Specificity
Courts expect waivers to be properly worded before they'll consider enforcing them. Suppose a company that offers tours on bicycle trails asks riders to sign waivers. The waiver has to state every possible injurious event that could occur while on the trail. Likewise, the person signing the waiver has to acknowledge and agree to waive damages for all of those possible scenarios. If you suffer harm from something not disclosed and specified in the waiver, a personal injury lawyer will probably want to contest it.
Reach out to a firm like Willis Spangler Starling to find out more.