You see it all the time—you go ziplining or parasailing or want to engage in some other activity and the vendor requires that you sign a waiver of liability. The ostensible upshot of such a document is that you won’t be able to sue if you are subsequently injured. Is that always the case? Is the waiver worth the paper it’s written on?
There are instances where a waiver of liability will be construed as valid by a court, but in practice courts carefully review the terms of a waiver, as well as the actual injuries suffered, to look for grounds that may invalidate the waiver. In part, this stems from public policy that disdains waiving liability for negligence, out of fear that it will lead to more careless behavior. The concern behind it goes something like this—if the waiver of liability is valid, the person covered can act as carelessly as they want without fear of lawsuit or recrimination. Therefore, they’ll pay little or no attention to safety.
As a general rule, courts are disinclined to uphold waivers that are too broad or general. On the other hand, if a waiver is fairly specific, and the injury falls under the type for which liability is waived, it will probably be upheld.
Courts are also reluctant to uphold waivers that are hidden in boilerplate or simply not conspicuous or obvious to the person ostensibly waiving liability. In the best of all possible worlds, the wavier will be in upper-case letters or in boldface. It should be in the same size type and the same font, and should be readily apparent to a reasonable person.
Additionally, courts will typically not allow a waiver of liability for “gross negligence.” That’s typically defined as reckless or conscious indifference to the rights of others.
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For a free initial consultation, contact our office online or call us at 973-993-8787. We have office locations in Morristown and Newton, but will visit you in your home or the hospital, if necessary.
We take all personal injury claims on a contingency basis. You will not incur legal fees unless attorney Popper recovers compensation for your losses.