We’ve all signed them without even glancing at the terms. You join a sports league, visit an amusement park, or join a gym, and you are required to sign a waiver to attend. Injuries can be common in these settings. Just what are we signing away if we get injured?

The Role of Waivers

Waivers, also known as liability waivers or release forms, are legal documents that participants sign to acknowledge the risks involved in a sport and to release the organizers from liability for injuries sustained during participation. Here’s what you need to know about waivers:

The primary purpose of a waiver is to protect the organizations (like gyms, spots organizations and landowners) from lawsuits – not necessarily protecting you or other participants involved. By signing a waiver, participants agree not to hold the organization responsible for injuries that occur as a result of the inherent risks of the sport or activity.

The content of a waiver can vary wildly, but a typical waiver will outline the risks associated with the activity, state that the participant assumes these risks, and release the organization from liability for any injuries, even those resulting from negligence.

Are They Even Enforceable?

The short answer? It depends. The enforceability of waivers can vary by state and the specific circumstances of the injury and waiver.

Location Matters: The first thing to understand is that the enforceability of liability waivers differs by state. Liability waivers are valid to some extent in many U.S. states, reluctantly accepted in Connecticut (Reardon v. Windswept Farm, LLC, 280 Conn. 153 (Conn. 2006), and outright rejected in Louisiana (Ramirez v. Fair Grounds Corp., 575 So.2d 811 (La. 1991)), and Virginia (Hiett v. Lake Barcroft Community Assoc., 418 S.E.2d 894 (Va. 1992)).

Clarity and Specificity: For a waiver to be enforceable, it must be clear, specific, and easy to understand. Courts often evaluate whether the waiver language clearly communicates the risks involved and the rights being waived. Vague or overly complex language can render a waiver invalid. Therefore, it’s crucial for businesses to draft waivers that are straightforward and unambiguous.

Type of Negligence: Waivers typically cover ordinary negligence and inherent risks associated with an activity. However, they are not enforceable for gross negligence, recklessness, or intentional acts that cause injury. This means that if a business fails to take basic safety precautions or acts recklessly, the waiver may not protect them from liability.

Public Policy Considerations: Courts may invalidate waivers that violate public policy or state laws. For example, a waiver that attempts to absolve a business from all forms of liability, including intentional harm, is likely to be struck down. Waivers must align with the broader legal and ethical standards of the jurisdiction in which they are used.

Nature of the Activity:The type of activity or service can also influence enforceability. Waivers for inherently dangerous activities, such as skydiving or bungee jumping, are often more likely to be upheld. This is because participants are generally aware of the risks involved and are more likely to accept them.

Bargaining Power: Courts may consider whether there was unequal bargaining power between the parties when evaluating a waiver’s validity. If a participant had no real choice but to sign the waiver (e.g., it was a condition for participating in a necessary activity), the waiver might be deemed unenforceable.

Scope of Coverage: Waivers are more likely to be upheld if they cover risks that are clearly related to the activity in question. Overly broad waivers that attempt to cover unrelated risks may be invalidated. It’s essential for businesses to ensure that their waivers are appropriately scoped.

What About Participant-to-Participant Liability?

Waivers are generally meant to protect the businesses and organizers from liability, not necessity other participants. The key factor here is the nature of the participant’s actions. If their actions go beyond the normal risks associated with the sport and show a reckless disregard for others’ safety, which cause injury, they could be held liable. For example, in the case of Gauvin v. Clark, 404 Mass. 450 (Mass. 1989), the court held that participants in sporting competitions would not be liable to one another for negligence but could be held liable for reckless conduct.

It’s also important to understand the concept of voluntary assumption of risk. This legal doctrine suggests that by participating in a sport or other dangerous activity, people voluntarily assume the inherent risks associated with that activity. For instance, a soccer player assumes the risk of being kicked or tripped during normal play. However, this doesn’t extend to risks that are outside the scope of what’s reasonably expected in the sport. If a player deliberately injures another or acts with reckless disregard for safety, the injured party may still have grounds for a lawsuit.

Final Thoughts

While liability waivers and the voluntary assumption of risk doctrine provide significant protection for sports organizations and set a high bar for participant liability, they don’t offer absolute immunity. Participants and organizations can still be held liable for injuries. The specific circumstances of each case, including the nature of the sport, the actions involved, and the jurisdiction’s laws, all play crucial roles in determining liability.