Waivers of Liability: a Bar to Recovery?
Most people probably don't put too much thought into the documents that they sign when joining a sports league or when allowing a child to go on a fieldtrip. Often, these documents rarely hold any significance beyond the required signature before participation in an activity is allowed. Only when an injury or loss occurs does the true weight of these documents become known.
Generally, waivers of liability are associated with risky activities such as sky diving, downhill skiing or scuba diving. However, they are also used by entities for less risky activities, including by colleges and schools when students join intramural sports or other athletics, by sightseeing groups that provide tours by bus or other vehicles, and by many other entities in most everyday situations that seemingly pose little or no risk.
Called a waiver of liability, these documents serve to protect entities such as businesses, schools, clubs and other organizations from liability should someone suffer an injury, any kind of loss or damages while participating in an activity provided by the entity. Most waivers of liability state that the individual signing the waiver agrees to forgo the right to sue and that he or she understands the risks of engaging in the activity. Often, a waiver will also include a provision that states the signer agrees to indemnify the entity should the participant injure or harm a third-party while engaged in an activity. Once a waiver of liability is signed, it is a legally enforceable contract.
While it seems that by signing a waiver of liability the signer is completely barred from seeking recovery against the entity, this isn't always the case. Arizona courts take a cautious approach to liability waivers, as most courts do, and strictly construe the waiver of liability against the party using the waiver to deny or protect against liability. This means that the court will take a close look at the waiver of liability, possibly asking questions such as:
- Is the waiver of liability easy to read and understand?
- Is the waiver of liability hidden on the back of a document in small print?
- Does the waiver of liability specifically waive negligent acts?
- Does the waiver of liability include language asking if the signer understands what they are signing?
- Does the waiver of liability make clear that the signer is assuming the specific risks inherent to the activity to be undertaken?
- Waivers of liability aren't always as cut-and-dry or air tight as they may seem. If you have suffered a loss or been injured, it is always important to speak with an attorney. Even if you have signed a waiver of liability, you may still be able to recover for your loss or injury.
