Do Waivers or Disclaimers Protect From Injury Liability?

When you purchase a ticket to a baseball game and enter the stadium, have you unknowingly waived your right to sue the stadium owner if you're injured on the property? When you signed that gym membership, did you pay attention to the contract language limiting the gym's liability for any injury you sustain while working out?

Many businesses and property owners try to limit their liability for injuries to their customers and visitors, by relying on waivers or disclaimers. Let's look at how these work, whether they're valid in the eyes of the law, and what to watch out for.

What Is a Waiver of Liability?

In the context of personal injury law, a "waiver" is a legal agreement or a set of circumstances that act to transfer potential liability for an injury:

• from a person or business that might otherwise be held at fault, and
• to the person who might end up getting injured.

When it comes to injuries that occur at businesses or on other private property, waivers of liability come in different forms, including:

• express waivers, which are in writing, as part of a contract, ticket purchase, or other agreement (this kind of waiver is often called a "disclaimer"), and
• implied waivers, which are created based on the circumstances of the customer or visitor's use of the business or property, and don't include any sort of written agreement or signature; an implied waiver may be created when a person enters a property and engages in activity that poses a risk of harm, such as ice skating or skiing.

When Are Waivers and Disclaimers Used?

Businesses and property owners can try to use waivers and disclaimers to shield themselves from injury liability in a number of different scenarios.

Residential or Commercial Leases

Sometimes a landlord may put a clause in a lease that seeks to excuse the landlord from any negligence arising out the duty to perform some basic obligation to tenants or the general public, such as the obligation to maintain reasonably safe walkways and buildings.

Recreational Areas

A commonly seen waiver or release of liability clause is seen in the context of recreational areas. Oftentimes, in order for a customer to participate in a sporting event, the business owner will require the customer to sign a release, acknowledging that the particular type of event is inherently risky, and relieving the owner of liability.

One example of this type of clause would be a dirt bike track requiring riders to sign a waiver releasing the business from liability for injuries sustained while riding.

Gyms

Many contracts for membership at an exercise facility contain releases or waivers of liability. These so-called "exculpatory clauses" generally act to relieve the property owner of liability if the customer is injured while using exercise equipment on the property.

Do Waivers Really Protect Businesses and Property Owners?

Many factors play into whether an exculpatory clause or other type of waiver will hold up in court.

Bargaining Power. One significant factor is the "bargaining power" of the parties involved. Where there is uneven bargaining power, the courts are less likely to find a waiver of liability valid.

For example, where two businesses that are equally experienced in negotiating contracts enter into a lease for property that contains a clause limiting the landlord's liability, courts are likely to find the parties were in an equal bargaining position and will uphold the exculpatory clause.

In contrast, a residential lease between an individual and a multi-person apartment complex that attempts to limit the landlord's liability is less likely to be upheld because of the difference in the negotiating power between the two parties.

Public Policy. Another consideration is whether the exculpatory clause violates public policy. One example would be where a property owner seeks to limit its liability for injuries to a minor child. That would go against the public's interest in ensuring that the rights of minors aren't affected without judicial guidance.

Conspicuous. In order for a waiver or disclaimer of liability to be upheld, it must be clear and apparent to the customer or visitor. A waiver may need to be in bold or capitalized letters in a contract, or hung up in a place where it can be easily seen and read by visitors.

The "Scope" of the Release Vs. the Injuries Suffered

Courts faced with deciding whether an exculpatory clause is valid must also consider whether the release covers the particular injury or damage suffered by the injured person.

Suppose visitors to a baseball game are required to sign a release of liability in order to attend the event. While the release would likely limit the team and/or the property owner's liability for injuries sustained by an errant fly ball (a reasonably anticipated possibility at a game) it likely wouldn't cover injuries resulting from a partial collapse of the bleachers. That kind of event isn't a foreseeable part of attending a baseball game.

"Ordinary" Negligence Versus "Gross" Negligence

When it comes to the validity of a waiver, another important question is whether it's being used to try to shield the business or property owner from liability from "ordinary" negligence, or from "gross" negligence.

Ordinary negligence is run-of-the-mill carelessness that causes an accident, and it's not unusual for a waiver (if it's otherwise valid) to shield a business or property owner from this kind of liability.

Gross negligence is particularly outrageous conduct that goes far beyond ordinary negligence, and it's safe to say that no waiver, disclaimer, or other attempt at avoiding liability will stand up when an injury is caused by this kind of dangerous conduct.

If Your Injury Case Involves a Waiver or Disclaimer

When a personal injury claimant is facing a defendant who's trying to shield themselves from liability through a waiver or disclaimer, it adds an extra layer of complexity to the case. And it's tough to downplay the importance of finding a way around the waiver (by establishing why it should be found invalid, for example). If you're in this situation, it probably makes sense to at least discuss the matter with a personal injury lawyer.