These days, when someone gets hurt, someone is getting sued. According to Common Good, a nonpartisan reform coalition, 15 million civil lawsuits are filed in the U.S. – from a planted finger in McDonald’s food to neighbors suing other neighbors for slipping and falling due to ice on their property. One thing’s for sure – Americans like are suing. This ‘sue first’ nation has led insurance companies everywhere to crack down on companies that exercise any sort of physical activity or risk, by requiring participants to sign waivers. Here is some expert advice regarding signing waivers.
- make sure you understand everything in the waiver
- know that waivers aren’t just for extreme sports anymore
- know what the common waivers are
- make sure you can sue if the company was grossly negligent
- know the difference between the 2 major types of negligence
- sign without reading
- sign if you don’t understand or something seems fishy
- sign without first researching the company/individual
- assume all waivers are the same
- assume you’ll never recover damages
Read through the entire waiver and make sure you actually understand what it says. Waivers have to be written using very specific language and if you’re like most people you don’t understand all of this “legalese”. If there are words or statements that you’re unsure about, ask. Then, be clear on what your rights are and what rights you are giving up by signing the waiver.
It used to be that waivers were primarily used for extreme or adventure sports (ie. rock climbing, parasailing, bungee jumping, etc). Most people can understand signing over your life in this situation. These activities are inherently dangerous and you are taking on that risk when you participate. Nowadays, however, waivers are required for just about anything; from petting zoos to yoga to even kids’ birthday parties (yes, people are getting that far-fetched). Be prepared that these waivers are designed to release the company/individual from liability.
While liability waivers are the most common, they aren’t the only forms used. There are several different forms besides or in addition to liability waivers that you might be required to sign. The “agreement to participate” form is common and warns the participant of inherent risks of an activity and the expected/required behavior. Combined with a liability waiver, this strengthens a facility’s case in the event of a lawsuit. Another form that every parent is familiar with is the permission slip. It doesn’t provide any liability protection, but is an added form of protection.
When you sign a waiver, you’re agreeing that you understand the risk and are still willing to go forward with the activity anyway. You’re agreeing that if all safety procedures are followed, but an accident happens, you won’t sue the company for something that they couldn’t prevent. What you aren’t agreeing to is give up your right to recover damages if the company or individual was grossly negligent and you were injured as a result.
There are two basic types of negligence – gross and ordinary. Before signing anything, make sure you understand the difference between the two.
- Gross negligence occurs when there is a failure to correct a problem after it’s been reported. For example, an injury that occurs from the failure to repair a broken piece of equipment after the malfunction was reported to management. In this case, the company/individual can be held liable, regardless of whether a waiver was signed or not.
- Ordinary negligence is the failure to act as a “reasonably prudent professional” would act under the circumstances. For example, a professional gives accidental bad advice or did not know the equipment was broken despite regularly checking it for problems. In this case, a liability waiver could prevent the company/individual from being sued.
It seems like common sense, but you’d be surprised at the number of people who sign waivers without reading them. We are quick to require a waiver, but they have gotten so common that we just now without thinking. Anytime you sign your name to a legal document, you should know exactly what you are signing.
If you are unsure of anything in the waiver, consult an experienced insurance attorney. Legal language can be tricky and attorneys can help spell it out in layman’s terms. If something seems fishy then definitely turn to an insurance lawyer before signing. They can help you figure out whether or not the waiver is legal and if so, what your options would be if you sign and then need to recover damages later.
While accidents happen, several accidents are usually the result of negligence or improper safety standards. Research the company/individual and find out if they have ever had an accident occur on their property, whether or not they have been sued, and how common injuries are. Regardless of whether or not they have been sued or held accountable, several major accidents should send up a red flag.
Many liability waivers use similar language, but that doesn’t mean the language is applied the same way to every facility. If you are unclear of anything in the waiver, ask a staff member to explain that section of the waiver and how it applies to their particular facility. The meaning will change from facility to facility even if it seems identical to other liability waivers. There are also different types of forms in addition to a liability waiver and they all have different meanings. See #3 above.
When you sign a waiver, the “hold harmless” claim is usually the part that waives your right to sue the company/individual if something goes wrong. However, if you’ve been injured or a family member dies as a result of gross negligence, don’t assume you won’t ever be able to recover damages just because you signed a waiver. The strength of your claim may vary state to state. Each state defines gross negligence differently and signing a waiver doesn’t always mean that you can’t recover damages for any injuries if something has or does go wrong.
These days, a waiver is exchanged right along with a greeting as you enter into a facility – or even your friend’s backyard. Read up on the common language and types of waivers that companies use. Before signing, make sure you read through the waiver in its entirety and understand what it is saying. Don’t assume all waivers are the same. If you believe your injury was the result of gross negligence, get in touch with a lawyer right away who can help you understand your rights.