There are many different kinds of contracts, from leases to service agreements, and non-disclosures to non-competes.
Nowadays, you have to sign some sort of contract or agreement to do just about anything and, in many cases, that includes going to events or participating in various recreational activities.
These agreements are usually referred to as liability waivers and they exist to protect the company or group who is providing the venue, facility, and/or equipment.
But what do these waivers say?
Unfortunately, many of the people who sign them have no idea.
Liability waivers are often presented to the participant right before the activity they want to partake in takes place, which leaves them with two choices:
1. Sit down and take the time to read all the fine print, but risk missing out on time that could be spent doing the given activity, or
2. sign the waiver, regardless of what it says or what rights are given up by signing it.
Most organizations count on their customers taking the second option; relinquishing their rights and taking responsibility for their well being into their own hands.
That means when an injury does occur, the injured party expects to have the same legal recourse they would in any other situation but find out that this may not be the case at all.
In many cases, the agreement made by signing a liability waiver is legally binding, and doesn’t leave the victim many choices.
But there are situations where, with the help of a personal injury attorney, the injured party may be able to fight back.
What is a Liability Waiver?
A waiver is an agreement between a service provider and participant where the participant relieves the service provider of any responsibility for injuries, including catastrophic injuries, that may be caused by ordinary negligence.
To understand this better, we need to define the two primary types of negligence:
- Ordinary negligence can occur because of broken equipment, an unsafe environment, or even bad advice and has been defined as “the failure to act as a reasonably prudent professional would act under the circumstances.” An act of ordinary negligence can be caused unintentionally, especially if the property owner or service provider is unaware of potential risk or unsafe conditions.
- Gross negligence, on the other hand, is a complete disregard for the safety of others. This is typically used to describe situations where the property owner or service provider had full knowledge that a potentially dangerous event could occur but did not take precautionary measures to prevent it from happening.
A liability waiver may also be referred to as a “release of liability” and, for the company, it has two main purposes:
- To use exculpatory classes to excuse an organization or company for injuries caused by ordinary negligence.
- To provide written proof that the organization or company warned participants of the inherent risks associated with the activity that they are partaking in.
Validity of Liability Waivers
At this point you must be wondering if liability waivers are legal or not.
The answer depends on a lot of things, mostly dealing with how the waiver is constructed, presented, and what kind of language is used.
The rate of enforcement also tends to vary state-by-state, with some states tending to be more relaxed in enforcing waivers and some states being very strict about waiver laws.
This being the case, it’s important to know what you’re getting into when signing a waiver, because despite what you may think, you could very well be signing away your rights and leaving yourself with no options when it comes to taking legal action in the event of an injury.
In Colorado, liability waivers have a strong history of being supported, especially when they’re used in connection with recreational sports like mountain biking, skiing/snowboarding, snowmobiling, etc.
The good news is that waivers that explicitly seek to release a party from their own negligence are generally not well-received in Colorado courtrooms.
Usually, if a liability waiver or release of liability meets the following conditions, it is going to be considered legally binding and enforceable in a court of law.
Waivers that meet these criteria don’t often allow wiggle room for the participant who signs them:
- The waiver must be written in such a way as to make it clear that its purpose is to absolve all liability, including that which results from negligence.
- The waiver must be able to be easily seen by the party signing it. It cannot be hidden within the depths of a contract.
- It must be signed by the person it is going to be used against.
- The injuries incurred are mentioned in the waiver (in either the known or unknown risks portion).
- Injuries are a result of the organization’s ordinary negligence.
- Wording in the waiver follows any and all of the requirements of the state’s laws.
- The waiver does not violate any state laws or public policies.
Limitations of Liability Waivers
We’ve gone over the circumstances in which a waiver will likely be upheld in court, but there are instances where waivers fail to meet these requirements, providing a legal loophole for the person who signed it.
These aren’t fool-proof solutions and they aren’t, by any means, guaranteed to work. But with a seasoned Colorado personal injury attorney by your side, you may be able to file a law suit that will be entertained by the court instead of being thrown out.
There are several ways that a liability waiver could be potentially be rendered invalid. They are:
- Language: The wording used in the waiver has to be clear and concise. It must be written in such a way as there can be no misinterpretation of the warnings it provides. One of the most common reasons that liability releases fail is because of inadequate or poorly written content. If a waiver is too short, it probably doesn’t include all of the jargon necessary to provide an organization protection. If too long, it could be too complex for the person signing to understand it and so, deemed linguistically unsound.
- Format: Enforceable liability waivers must place their critical language in a location on the page that is not hidden or easily glossed over. Critical language must also be written in a large enough font to read. If the format of the waiver prohibits either of these requirements from being upheld, the waiver could be considered invalid.
- Misrepresentation: If the activity or service being offered has been marketed to consumers using fraudulent claims or intentionally false statements, then a waiver signed by a participant of said activity can’t be considered legal. If the participant doesn’t know what they are getting into, or thinks that the activity is something that it’s not, they may be able to make a case that the organization committed fraud by making its original claims.
- Content: For a liability waiver to protect certain parties, all of those parties just be mentioned by name. If this is not the case, you may be able to bring a lawsuit against one of the parties who is not mentioned in the waiver but had a hand in contributing to your accident.
- Gross Negligence and Recklessness: Waivers may protect organizations from ordinary negligence, but the lines are a little blurrier when it comes to gross negligence and/or recklessness. The likelihood of this defense working depends on the state in which you are located and, in some cases, the judge who is presiding over your case.
- Defective Products: A liability waiver may prevent you from suing the organization who provided access to the activity your participating in, but it can’t prevent you from suing the manufacturer based on product liability. If you were injured by malfunctioning or poorly constructed equipment, you may be able to sue the company that made it.
Fighting Liability Waivers in Colorado
So if you’ve been the victim of an injury after signing a liability waiver, does that mean all hope is lost?
Well, not necessarily. As you can see, this is a complicated area of the law and one that should certainly not be underestimated.
Lawsuits dealing with the validity, or lack thereof, of liability waivers can get messy. The organization that had you sign a waiver, and their lawyers, will be well-prepared and they’ll fight tooth and nail to protect their reputation and public image.
Because sports are a big pastime here in Colorado, chances are you have signed one or more of these waivers in the past and participated in an activity without any problem. That’s not always the case, however, and if you or a loved one has been injured while under the constraints of a liability waiver, you may be able to take legal action.
Again, forming a valid law suit that will hold up in court under these circumstances can be a challenge, one that is best handled by a trained personal injury lawyer.
To find out if your liability waiver may not be legally enforceable, call The Frickey Law Firm at 303-625-9346 or contact us now to set up a free consultation.