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 are injured while 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 types of property owners will try to limit their liability for injuries to their customers by including waivers or disclaimers in their contracts. These “exculpatory clauses” come in different forms, with some waivers of liability not even requiring the customer's acknowledgment or signature. Although common, not all of these types of clauses will actually protect a property owner from claims of negligence by an injured customer.
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 his tenants or the general public, such as maintaining 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 property 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 requiring a person who wants to use a race track for dirt bike racing to sign an waiver that releases the race track owner from liability for injuries sustained while racing. In the particular area of recreational properties, there are also “implied” waivers. An implied waiver is often applied where a person enters a property knowing that the activities at the property pose a risk of harm, such as ice skating or skiing. Unlike an express waiver, an implied waiver does not require that the customer sign any contract releasing liability.
Gyms: Many contracts for membership at an exercise facility contain releases or waivers of liability. These exculpatory clauses generally act to relieve the property owner of liability if the customer is injured while using exercise equipment on the property.
Many factors play into whether an exculpatory clause will be upheld by a court faced with a claim of negligence by an injured visitor to a particular premise.
Bargaining Power. One significant factor is the “bargaining power” of the parties to the contract. 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 of a clause that would violate public policy would be where a property owner seeks to limit its liability for injuries to a minor child because it would violate the public policy of ensuring that the rights of minors are not affected without judicial guidance. Another example of a clause that would violate public policy would be a clause that attempts to limit liability in a field that is extensively regulated by a state, such as beauty salon services.
Conspicuous. In order for a waiver or disclaimer of liability to be upheld, it must be apparent to the visitor to the property. This may require that a waiver be in bold or capitalized letters or hung up in a place where it can be easily seen and read by visitors.
Scope of the Release. 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 property owner's liability for injuries sustained by an errant fly ball (an reasonably anticipated possibility at a game) it would not likely cover injury sustained if the bleachers collapsed beneath the visitors because such injury would be generally unforeseeable.
Whether an exculpatory clause will protect a property owner will depend on the facts of the particular case. Property owners would be wise to take precautions to avoid injuries to their patrons to avoid injury in the first place and customers should educated themselves about any exculpatory clauses that may apply to them in a given instance.