Representation Is Everything: A Blog About Bankruptcy Law

One of the most worrisome reasons for an injury claim to be rejected is that you might have signed a liability waiver or release form. Especially if you don't recall being handed such a document to sign, this can be extremely upsetting.

You may be wondering how you can refute or nullify the claim that liability has been waived. Look at four arguments a personal injury lawyer might use to get past a waiver or release.

1. Too Much Is Waived

Generally, only limited forms of negligence can be waived. For example, it would be ridiculous and dangerous for the courts to allow a party to waive malicious or reckless conduct. This would incentivize parties to take dangerous actions that run contrary to the societal good.

Consider what would happen if an exotic animal zoo was able to enforce a waiver. In American law, all damages caused by exotic animals leave the animals' owners strictly liable. This means it doesn't matter what happened or why except for the fact the animal hurt someone. Such an approach is meant to discourage the casual ownership of dangerous animals, and waiving liability would likely not hold up in court.

2. Was the Waiver Conspicuous?

Bury a waiver inside the text of a bigger agreement is problematic at best. For example, many cruise lines and theme parks place waivers on their tickets or even their online checkout forms. The person agreeing to waive liability must be aware that they're doing so. If a waiver is buried on page 37 of an agreement and no effort is made to draw attention to it before signing, then it probably hasn't been conspicuous enough. Notably, many businesses are now providing separate waivers to satisfy this test.

3. Lack of Specificity

When you sign a liability waiver, the agreement must include specific terms. For example, waivers accompanying school sports programs have to be specific to the activities in question. A waiver from a high school football program can't be so broad that it might prevent claims arising from injuries during other activities or even during school hours.

Similarly, a waiver can't just say something overly broad, such as "the signatory waives all claims of negligence." The waiver should anticipate specific events and state what they are.

4. Pressure

Finally, consent must be provided for a waiver without pressure. A theme park can't detain people on the way out and make them sign waivers, for example. You must be free to say no to the waiver before you sign it.

For more information about liability waivers, contact a personal injury lawyer.