Release or Waiver of Liability
Many activities in which you participate require a release or waiver of liability. Have you ever read the back of a ski lift ticket, or the form you sign when your child goes to a birthday party at a skating rink or enrolls in a summer camp? Do you know what they mean? These types of releases or waivers of liability attempt to limit or eliminate the liability of the business involved and potentially everyone else.
The sports injury attorneys at Abramson Smith Waldsmith, LLP, recognize that you probably never really thought about what rights you were giving up when you signed the forms before engaging in a certain activity. It is only when someone is seriously hurt that these agreements become important to the consumer.
We also understand that the consumer is in a very difficult position when faced with these forms immediately before participating in an activity when you don't have a reasonable opportunity to thoroughly read and evaluate the language in the release or waiver of liability.
Even if you have the opportunity to read the release or waiver of liability, do you know whether or not it complies with the legal requirements? Do you believe that have the right to alter the language and still participate in the event? What rights are you actually giving up?
You are in a very difficult position when you are presented with a release immediately before an activity is to begin. Will the business allow you to participate if you refuse to sign the release or waiver of liability, or if you alter the language? 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.
The bottom line is that releases and waivers of liability are frequently enforced in California. They are considered contracts and can be recognized as valid agreements to limit your rights if they are properly drafted and executed. 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.).Many releases include waivers of the Constitutional right to a jury trial. You may have given up your 7th Amendment Constitutional right to a jury trial without even realizing it.
What if you signed a release or waiver of liability?
The signing of 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 for yourself or your child and you or your child sustained a serious injury, we can help you evaluate whether or not what you signed is valid and binding.
There are four basic 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. It 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 have a legal challenge to it. For example, the wording may be to 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 vitiate the release or waiver of liability.
• Gross negligence or recklessness: defendant's conduct may amount to something more than ordinary negligence. 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 defendant'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 simply 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 have given up your rights.
The sports injury attorneys the law firm of Abramson Smith Waldsmith, LLP, in San Francisco has experience handling serious sports injuries cases throughout California. 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.
