Signed a Liability Waiver? You Might Still Have the Right To Sue

A liability waiver is a contract in which you agree not to sue for damages, but you may still have the right to sue for certain types of accidents. Depending on state law, some states still give you the right to sue for reckless or intentional conduct, or when the agreement violates public policy. Minor injury victims may still have a right to sue even after their parents sign a waiver.

To find out if you can have a valid claim for a personal injury case after signing a liability waiver, contact a personal injury attorney

What Is a Liability Waiver?

A liability waiver is a legal contract where one party gives up their right to sue for damages for participating in an activity or using a service. It’s a way for a business to reduce their risk of liability for foreseeable or inherent risks of a given activity.

In most cases, waivers of liability are enforceable only if they are clear, unambiguous, and not contrary to public policy, and if the signer was not induced by fraud or forced to sign the contract.

Not all liability waivers involve paper contracts requiring a written signature. Companies increasingly use electronic contracts with a release of liability. These agreements may involve multiple pages of fine print the signer never reads. However, the signer is generally held to the terms of the signed waiver, unless an exception applies.

Liability waivers can address different types of liability, including ordinary negligence, professional liability, product liability, and premises liability. However, just because a contract claims you have waived all of your rights does not make it legally true. Generally, companies cannot require you to sign away all of your legal rights. Some liability waiver contracts are unenforceable, and injury victims can still sue for damages.

Common Examples of Using Liability Waivers

The average person comes across general liability waivers all the time. You may be asked to sign a liability waiver for common recreational and participatory activities, including:

• Skiing or snowboarding
• Going to an amusement park or concert
• Using a gym or trampoline park
• Using professional services, like going to the doctor or dentist
• Using a swimming pool or spa services

Some liability waivers are found on the back of tickets or in fine print the user never realized they had agreed to.

What Is a Contract of Adhesion?

Contracts that you do not have the option to change are often called contracts of adhesion, and they are not automatically unenforceable. Courts may scrutinize them for unfair surprise, unconscionability, or violations of public policy.

Some states may refuse to enforce certain recreational liability waivers on public policy grounds, especially where the waiver is overly broad, unclear, or involves unequal bargaining power, but a contract being “adhesion” by itself does not automatically make it void.

Are Waivers Enforceable After an Injury Accident?

Whether a waiver is enforceable after an injury accident depends on several factors. State laws vary on enforceability of liability waivers. A few states do not enforce liability waivers for any physical injury accidents, and others strictly scrutinize these agreements.

However, the majority of states enforce pre-injury liability waivers, as long as they are clear and unambiguous.

There are exceptions when most courts will not enforce a liability waiver, even if the signer voluntarily reviewed the agreement and later suffered an injury the waiver claims to bar. For example, a court may not enforce the waiver when it is hidden in the fine print or uses confusing language.

When Are Waivers Not Enforceable?

Liability waiver enforceability varies by state. Some states take a much stronger stance against mandatory liability waivers that restrict a person’s right to sue for damages after a personal injury accident.

Generally, there are three areas where a court may not enforce a liability waiver, including:

1. Injuries caused by gross negligence or intentional conduct
2. Contracts that violate public policy
3. Minor injury victims when parents sign liability waivers

1. Waivers Do Not Apply for Gross Negligence or Intentional Actions

In most states, courts enforce waivers that exempt a party from claims of ordinary negligence. However, they are not enforceable when the victim suffers injuries caused by more than just negligence. Waivers generally do not apply when the injuries are the result of:

• Gross negligence
• Wanton or reckless behavior
• Intentional harm
• Criminal action

The difference between negligence and grossly negligent action can depend on a jury’s findings of whether the defendant had a reckless disregard of safety. For example, falsifying maintenance records or allowing impaired workers to perform safety-sensitive tasks would likely go beyond ordinary negligence.

2. Contracts Against Public Policy

Courts may not enforce certain contracts they find violate public policy. Liability waivers that may violate public policy may include essential services, public utilities, or medical treatment.

For example, most states would not enforce a liability waiver that your surgeon requires you to sign before undergoing surgery. A medical liability waiver would limit your ability to file a medical malpractice lawsuit for professional negligence.

3. Minor Claims for Negligence After Parents Sign a Waiver

In most states, parents cannot sign a liability waiver that limits their minor child’s right to file a legal claim for an injury accident. In these states, parents and children have individual liability claims. A parent can sign away their own liability claim with a waiver, but they cannot restrict the child’s claim for future negligence.

However, some states allow parents to limit their minor child’s claim for negligence. Commonly, this applies when parents sign a waiver for their child to participate in sports or recreational activities. To be enforced, the language must generally be clear and unambiguous. Check with an attorney to find out how your state enforces liability waivers for minors.

Enforceability of Liability Waivers by State

State	Enforceability of Liability Waivers	State Statute or Case Law
Alabama	Generally enforceable for ordinary negligence with clear and unambiguous language
Alaska	Generally enforceable with clear and conspicuous language using the word negligence
Arizona	Enforceability determined by a jury	Ariz. Const. Art. 18, § 5
Arkansas	Generally enforceable with clear language but construed against the party seeking immunity
California	Generally enforceable with clear, explicit, and unambiguous language	Cal. Civ. Code § 1668
Colorado	Generally enforceable based on fairness and clarity of the language
Connecticut	Generally enforceable with clear and unmistakable language
Delaware	Generally enforceable if clear and unequivocal	Del. Code Ann. Tit. 6, § 2-302
Florida	Generally enforceable with clear and unequivocal language
Georgia	Generally enforceable with clear, explicit, and prominent language	O.C.G.A. § 1-3-7
Hawaii	Generally enforceable but strictly construed
Idaho	Generally enforceable with clear and unambiguous language
Illinois	Generally enforceable but construed against the drafter
Indiana	Generally enforceable with clear and explicit release from negligence
Iowa	Generally enforceable
Kansas	Generally enforceable
Kentucky	Generally enforceable
Louisiana	Unenforceable	La. Civ. Code Ann. Art. 2004
Maine	Generally enforceable
Maryland	Generally enforceable when it does not affect the public
Massachusetts	Generally enforceable
Michigan	Generally enforceable when clear and unambiguous
Minnesota	Generally enforceable only against ordinary negligence
Mississippi	Generally enforceable but highly scrutinized
Missouri	Generally enforceable but highly disfavored
Montana	Unenforceable	Mont. Stat. § 28-2-702
Nebraska	Generally enforceable
Nevada	Generally enforceable
New Hampshire	Generally enforceable but strictly construed
New Jersey	Generally enforceable but highly scrutinized
New Mexico	Generally enforceable
New York	Enforceable, except where prohibited by statute
North Carolina	Generally enforceable
North Dakota	Generally enforceable, unless willful or fraud	N.D.C.C. § 9-08-02
Ohio	Generally enforceable with clear and unambiguous terms
Oklahoma	Enforceability determined by a jury	Okla. Const. Art. XXIII, § 6
Oregon	Generally enforceable, evaluated on a case-by-case basis
Pennsylvania	Generally enforceable when parties are free to bargain
Rhode Island	Generally enforceable when sufficiently specific
South Carolina	Generally enforceable but strictly construed
South Dakota	Generally enforceable
Tennessee	Generally enforceable
Texas	Generally enforceable when conspicuous and intent expressed in the document	Tex. Bus & Com. Code § 1.201
Utah	Generally enforceable
Vermont	Generally enforceable with clear intent
Virginia	Unenforceable
Washington	Generally enforceable
Washington, D.C.	Generally enforceable with clear and unambiguous language
West Virginia	Generally enforceable with clear and express language
Wisconsin	Generally enforceable but strictly construed
Wyoming	Generally enforceable but strictly construed

Who Else Can You Name in a Personal Injury Claim?

In a personal injury legal claim, other parties may share liability for causing your injuries.

For example, you sign a liability waiver for your workout gym. During a workout, an exercise ball explodes, causing you to fall and suffer serious neck injuries. Even if your liability waiver does not allow you to sue the gym, you may still have a product liability claim against the manufacturer of the exercise ball.

Under product liability claims, injury victims can hold multiple parties liable for their injuries or property damage, including the manufacturer, distributor, and retailer. Other parties that may share liability include property owners, contractors, government agencies, maintenance companies, or other participants.

Legal Options for Recovery After Signing a Liability Waiver

Most people sign a liability waiver because they never think they or their loved ones will suffer an injury. However, even after signing a liability waiver, you do not lose all your rights. Some waivers are not enforceable, and you can still recover compensation from those responsible for the accident. Other parties not covered by the waiver may also share responsibility for your injuries.

For legal advice about your right to sue after you sign a liability waiver, contact a local personal injury lawyer.