Attacking a Waiver of Liability in Court
Have you ever read the back of a ski lift ticket, or the form you signed when your child went to a birthday party at a skating rink or enrolled in a summer camp?
Many of the sports and rec activities in which you may participate require a signed release or waiver of liability. You agree to give up certain rights in exchange for the services provided by the business (e.g., ski resorts, golf camps, baseball league, etc.). These releases, or waivers of liability, attempt to limit or eliminate the liability of the business if someone suffers injuries.
The sports injury attorneys at Abramson Smith Waldsmith, LLP, know that most people have never really thought about what rights they might be giving up when they sign the forms. It is only when someone is seriously hurt that these agreements become important.
As a consumer, you are in a difficult position when faced with these forms immediately before participating in an activity. Rarely do you have a reasonable opportunity to thoroughly read and evaluate the language in the release or waiver of liability. Rarely do you know if it complies with legal requirements.
Even if you do have an opportunity to read the release or waiver of liability, do you know what rights you are actually giving up?
- Some releases include waivers of the right to a jury trial. You may have given up your 7th Amendment Constitutional right to a jury trial without even realizing it.
- Do you believe that you have the right to alter the language and still participate in the event? Will the business allow you to participate if you refuse to sign the release or waiver of liability? Usually, the employee who has you sign the form has no discretion to be able to allow someone to participate without signing the form, as is.
What if You Signed a Release or Waiver of Liability and Then Were Injured?
Releases and waivers of liability are usually enforced in California. They are considered contracts that, if properly drafted and executed, are recognized as valid agreements that limit your rights.
HOWEVER, signing a release or waiver for a sporting activity may not be fatal to your right to recover compensation for your injuries. If you signed a release or waiver of liability and you or your child sustained a serious injury, we can help you evaluate whether the form you signed was valid and binding.
There are four ways to challenge the validity and binding effects of a release or waiver of liability:
- Illegal content or format: Releases and waivers of liability must be clear and concise, and in a font that is easy to read. They also must specifically identify all parties who are being released or waived from liability. If the release or waiver of liability does not meet certain requirements, you may be able to bring a legal challenge. For example, the wording may be too narrow or too broad to cover what happened. It may not release all the parties you want to sue. The writing may be too small to read. Or, it may simply be what the law calls "unconscionable."
- Fraud or misrepresentations: The advertisements, brochures, website or other marketing literature associated with the activity may have contained misrepresentations or intentionally false statements that induced you to participate in the sporting activity. This type of fraud would override the release or waiver of liability.
- Gross negligence or recklessness: The California Supreme Court recently held that releases are valid only to protect defendants from being sued for negligence. They are invalid if you can prove that the other party's conduct was more than negligent, e.g., gross negligence or recklessness.
- Products liability : A valid release does not prevent you from pursing a case against the designer, manufacturer or distributor of a defective product.
Do not be discouraged or intimidated because you have signed a release or waiver of liability. The law is often on your side even though you have signed something that appears to limit your rights.
If you have been seriously injured during a sporting activity, the recreational injury lawyers at Abramson Smith Waldsmith, LLP, in San Francisco are prepared to evaluate whether you have signed a valid release or waiver of liability. Contact our law office for a free consultation.