Businesses use a waiver/release contract to try and eliminate the possibility of a lawsuit in the event a customer gets hurt participating in the company sponsored activity. Anyone who has rented a jet ski or boat has probably been asked to sign a waiver release stating they would not hold the company responsible if they got hurt. This practice is a common risk management tool for business owners to eliminate or limit the probability of a medical claim. It is important to note that not all legal waivers are created equal, so it is important to follow some guidelines when drafting a waiver contract to ensure that it has the greatest probability to hold up in court.
Legal Requirements for Waiver Contracts
There are three conditions that must be met so that a waiver will be considered legally binding. The first litmus test that will be evaluated is whether the injury caused is covered specifically in the language of the waiver. A second consideration is whether the contract is legal based on state law in the state where the company is located. The final test of a waiver’s legality relates to possible violations of any public policy or state laws.
State Enforcement Differences
Each state interprets the law surrounding waivers based on its unique perspective. In fact, the states of Louisiana, Montana and Virginia have a history of not enforcing recreational waivers at all. At the other end of the spectrum are states that seem to consistently embrace waivers. Alabama, Maryland, Michigan, Tennessee, Georgia, North Dakota, Kansas, Ohio, Massachusetts and Nebraska have a track record for a general acceptance of waivers with less legal challenges to the language of the contract.
Conversely, the states with a reputation for a strict interpretation of contract language resulting in many legal challenges to waivers are many. Delaware, Alaska, Arizona, Maine, Arkansas, Utah, New Jersey, Wisconsin, Hawaii, California, Indiana, Nevada, New York, Missouri, New Hampshire, Vermont, Pennsylvania, Mississippi, Connecticut and Kentucky fall into this category. Waivers must be carefully prepared in these states in order to hold up in court.
Establishing Assumption of Risk (AOR) to Defend Against Negligence
In a legal defense proceeding against a negligence claim, it is incumbent upon a business to show that they gave enough warning about any possible dangers associated with the activity in question. By requiring that a customer sign a well-written and detailed waiver, companies hope to establish the required evidence that they warned the customer about inherent risks associated with participation in the activity that caused the injury. It is also critical that worst case scenarios are spelled out in the waiver. Courts are most likely to accept the AOR defense when it relates to inherent risks of a given activity.
AOR Defense Consideration with Minors
Since a minor can not legally enter into a contractual agreement, a parent will be asked to sign a waiver when circumstances dictate. It is noteworthy that most states do not allow a parent to sign away their child’s right to sue in the event of any injury. Currently only 10 states honor a parent’s signature on a child’s waiver as a possible legal defense in the case of any injury. The legal landscape in this area continues to change.
Considering the high costs of going to court, it is no surprise that companies try to limit their legal risk. A waiver/release form is one good strategy for protecting a company against negligence lawsuits. Since waivers can be challenged in court, it is always a good idea to have adequate liability insurance.
Byline: Devin Swanson has seen his fair share of Personal Injury cases that have revolved around the presence or absence of liability waivers.