When Liability Waivers Are Unenforceable

Pretty much everyone has signed a liability at one point or another.  Indeed, liability waivers are often used before individuals engage in certain physical activities and may be required to enter certain locations.  Most of the time, liability waivers are fully enforceable as a written agreement between the parties.  However, there are certain situations when liability waivers are unenforceable, and individuals need to know when they may not be able to secure the protection of liability waivers.

Gross Negligence

One important circumstance when liability waivers are unenforceable is during instances of gross negligence.  Liability wavers in many contexts only cover ordinary negligence.  This is essentially when parties fail to use the level of care and caution of an ordinary person, and as a result, damages resulted.  The vast majority of claims involve ordinary negligence, and are thus under the scope of liability waivers, so long as such waivers are applicable to the situation involving the claim.

Gross negligence, however, is a different category of conduct than ordinary negligence.  This more extreme form of negligence generally involves the deliberate or reckless disregard for the treatment of others.  This kind of negligence often “shocks the conscious” and requires a level outrageous conduct that is not needed to satisfy ordinary negligence.  Courts reason that if parties act with reckless disregard for others, they should not be shielded by liability waivers, and as a result, gross negligence is one situation when liability waivers are unenforceable.

Statutory Carveouts

In some jurisdictions, statutes provide for situations when liability waivers are unenforceable.  Some states have deemed it against public policy for liability waivers to shield against litigation in certain situations, and have legislation in place that makes it difficult to shield oneself with a liability waiver in certain circumstances.  For instance, some state prevent certain amusement establishments from taking advantage of liability waivers.  This is likely because policymakers believe that places of amusement owe a high duty to customers to ensure that they are protected by rides and other attractions.  Furthermore, some jurisdictions restrict gyms, fitness studios, and other similar establishments from being shielded by liability waivers in certain circumstances.  This is likely because policymakers want to ensure that such establishments have a heightened sense of responsibility when it comes to safeguarding the people who enter the premises.  Because the rules oftentimes vary between states, it is important to consult an experienced lawyer who knows when liability waivers are unenforceable to ensure that a client has the greatest possibility of success.

Contract Defenses

Another circumstance when liability waivers are unenforceable is when basic contract defenses that bar the enforceability of contracts are at issue in a matter.  Contracts may not be enforced by courts for a variety of reasons.  For instance, if a liability waiver was signed by a minor without the assent of that minor’s parent or legal guardian, that waiver may not be enforceable.  In addition, if the person signing the waiver could not read or understand English, this could be another situation in which a waiver will not be enforced.  In certain extreme examples, waivers may not be enforceable because they are unconscionable.  Determining if contract law defenses apply to a given liability waiver is an extremely fact sensitive inquiry, since this often depends on the background of the person signing the waiver and the circumstances surrounding the execution.  As a result, it pays to speak with an attorney that is skilled with such contract law defenses to ensure that a client has the best possibility of having the waiver found enforceable or unenforceable depending on the interests of the client.

Scope of the Waiver

Another consideration that influences when liability waivers are unenforceable is the scope of the waiver.  The scope of the waiver is typically determined by the text of the waiver itself, which usually lists all of the situations to which the liability waiver applies.  Some liability waivers explicitly say that they apply to all claims known or unknown, but courts are more likely to enforce a waiver if the situation involved in a claim is explicitly covered by the waiver.  As a result, parties drafting waivers should include all situations and injuries that might plausibly involve the parties and to have the best chance at having the waiver enforced.

Oftentimes, claims involve situations that were not explicitly discussed in a waiver and may only tangentially relate to situations contemplated in the waiver.  For instance, if a liability waiver only covers personal injuries, it might be difficult for a party to use that waiver to protect the party from defamation claims or other causes of action that do not involve personal injuries.  Moreover, if a waiver does not explicitly release claims by dependents or others related to the person signing the waiver, it might be possible for these other parties to pursue claims notwithstanding the fact that a wavier was signed.  Since the scope of the waiver is so important to determine when liability waivers are unenforceable, it is important that this part of the waiver be carefully negotiated between the parties.

The Rothman Law Firm has extensive experience drafting waivers and pursuing claims despite the existence of a liability waiver.  If you are looking for an experienced New York and New Jersey personal injury attorney to handle your claim, please feel free to contact The Rothman Law Firm to request a free consultation.