Litigation Newsletter

Liability Waivers and Their Enforcement

In general, individuals may be held liable for damages arising from their negligence, and businesses may be held liable for the negligence of its employees. However, it may be possible to avoid such liability under certain circumstances through a “waiver of liability”, or similar document.

Waivers of Liability

A waiver of liability is an agreement to release a party providing facilities or services from liability for any negligence on their part. Waivers may also be called “releases,” although a release usually applies to known claims, whereas a waiver more commonly refers to a release of claims that have not yet arisen.

Waivers may be used in many contexts, but this article focuses on their use in connection with recreational activities, i.e., attendance at, or participation in, sporting events. They are especially common when the activity is dangerous and may easily result in injury or death. Written waivers may take on many forms, but common provisions in a waiver include:

  • A description of the contemplated activity and the risks and dangers inherent in it, including possible injuries and death.
  • That the waiver is being given in return for being allowed to participate.
  • A clear statement that the signer is releasing the business, its employees, the school, faculty, etc. from present and future liability arising from ordinary negligence by them. The waiver may also be binding on the signer’s family and heirs in case of death.
  • An acknowledgment that the signer has read the waiver and understands the potential dangers, and is voluntarily participating and assuming the risk of injury or death.
  • A promise (or covenant) not to sue and/or a covenant to indemnify the business for financial loss caused by injury to the signer.

Enforcement of Waivers

Whether such a waiver will be enforced depends largely on the jurisdiction and the circumstances surrounding the case. The vast majority of U.S. states allow enforcement of such waivers, but a few states refuse to do so. Some states are more inclined to enforce waivers; in some states it is public policy to enforce waivers. Many courts, however, do not favor waivers of rights, e.g., giving up the right to sue another for damages caused by negligence, and strictly interpret the waiver against the party that wrote it.

When a waiver is enforced, the court usually holds that the waiver bars the injured party from maintaining a lawsuit against the business as a matter of law. A trial may not even be necessary. In deciding whether to enforce the waiver, courts may consider a variety of factors. These factors vary significantly among jurisdictions, but may include:

  • Whether it is a release of “gross” negligence (willful, wanton or intentional behavior). Usually, only a waiver of “ordinary” negligence is allowed.
  • Whether the language creating the waiver and the risks of the activity are clear and unambiguous. Any ambiguity is generally interpreted in favor of the signer.
  • The relative bargaining power of the parties. Courts are less likely to enforce a waiver that was effectively forced on the signer. Also, in many, but not all, states, waivers may not be enforced against minors.
  • Whether the waiver was “knowing” and voluntary, i.e., did the signer have time to read it and comprehend the rights being given up, as well as the dangers of the activity.
  • Whether the injury resulted from risks contemplated by the parties. Courts in some states require use of the word “negligence” in the waiver for it to be effective.
  • If essential services affecting public interest and policy are involved. Waivers that affect public policy (e.g., waivers of statutory duties) are often not enforceable.

Examples of Enforcement and Non-Enforcement

  • In cases decided in federal district courts, the widows of two men killed in a rafting accident in British Columbia sued the company handling the trip. Both courts refused to dismiss the cases, notwithstanding signed waivers of liability by both decedents. The courts found ambiguities in the waivers, the specific risks of whitewater rafting were not mentioned, and the waivers were given to the decedents just before they boarded their planes, although they were supposed to be mailed to them earlier, leaving insufficient time to review and understand the waivers.
  • In another federal court case in Northern California, a young woman fell off a raft during a rafting excursion, became tangled in the branches of a low hanging tree, and drowned. She had signed a waiver and assumption of risk, but her heirs and beneficiaries filed a lawsuit, claiming, among other things, that the decedent was ill when she signed the waiver, did not understand English well (she was German), and had no opportunity to inspect the river prior to signing, therefore the waiver could not have been knowingly given. The court enforced the waiver to bar the suit, holding that drowning is a contemplated risk of rafting.
  • In a case in Washington State, the court upheld a waiver by a scuba diver who drowned on his second dive. The court agreed that the actions fell within the language of the waiver and the waiver was not against public policy, nor had there been willful or wanton conduct by the defendant.
  • In a federal district court case in Indiana, however, the court found that a scuba diver injured when the boat was struck by a large wave while traveling to a scuba site was not barred from suing, because the waiver stated only that he was aware of the dangers incidental to “scuba diving, instruction, or snorkeling,” not the boat ride. Only injuries incurred while scuba diving would have been barred under the waiver.
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