With the proliferation of business interests in the modern world, liability waivers are becoming increasingly common. These are stipulations in contracts that state that the customer relinquishes all rights to pursue injury claims against the company.
A common question many folks have for personal injury attorneys is, "Are waivers enforceable?" Let's examine the issue from the view of a personal injury attorney.
Ordinary vs. Gross Negligence
In civil law, there are two kinds of negligence. Ordinary negligence is when injuries occur in a situation where the at-fault party was otherwise trying to maintain a safe location. For example, the staff at a grocery store is likely making an effort to keep the floor dry, but someone might have overlooked a spill in aisle three. If a slip-and-fall incident were to occur, this would likely be considered ordinary negligence.
Gross negligence is when someone willfully and knowingly leaves a dangerous situation unattended. If the supervisor of an apartment building failed to fix a busted railing after someone had already fallen, for example, a second incident would likely be deemed grossly negligent.
Even the best liability waiver on earth doesn't get a defendant out of a gross negligence case. For this reason, waivers are largely written around cases of ordinary negligence.
Notably, recklessness, malice and criminal conduct can never be waived. No one can agree to a waiver that grants a party the right to assault them, for example.
To the extent a liability waiver might be enforceable, it largely depends on how clear the terms were. While most states don't require an explicitly stated waiver of ordinary negligence, the terms of a waiver have to be clear, unambiguous and specific. Blanket waivers aren't enforceable, and a good waiver has to detail exactly what the customer is waiving.
An increasingly common practice is for waivers to be included with purchases. Especially when buying online, waivers are often part of the too-easy-to-click agreement checkbox.
Suppose you went to an amusement park. The park's operator might include the waiver on the ticket itself. For the waiver to be enforceable, the terms of the waiver would have to state what is being waived. They would also have to be stated in a manner that any reasonable person could understand.
If you are the subject of a waiver, make sure you can find a copy of it. Present this to your personal injury attorney so they can give it a thorough read.
If you need a lawyer to defend your personal injury case, contact a lawyer like Spooner & Perkins P.C. Attorneys at Law.