Taking the family for a day of white water rafting? Walking through a haunted penitentiary? Playing in a recreational sports league? Want to go skydiving? If you’ve done any of the above activities, or are considering taking part in them or other adventures, you should learn a little more about those waivers you are required to sign before engaging in such dangerous activities. There are some haunted houses so scary that they require waivers for those who might have health problems such as heart disease in the event that something were to go wrong.
The primary purposes of an activity waiver
An activity waiver has two primary purposes:
- Excluding a sports organization or other entity from simple negligence, which is known as contractual exculpation
- Provide evidence of the entity’s warning of risks of the activity being performed, which triggers common-law assumption of risk (AOR) defense using tort law
The easy answer to the question posed above is that if the waiver is worded the right way and it is signed, then it is enforceable more often than not, leaving anyone who suffers an injury with no recourse for a claim against the entity.
General rules for liability waivers
The general rules for liability waivers are as follows:
- The waiver must be worded clearly and unambiguously when attempting to relieve the entity of any liability, including liability associated with negligence.
- The waiver must be prominent, if not standalone, and cannot be hidden in the fine print of any contract.
- The waiver has to be signed by the person who it is being put in place against.
The bottom line with liability waivers is that as a consumer, you need to read the waiver word-for-word prior to signing. If the waiver is constructed meeting the general rules above, you will be signing away your rights to a lawsuit should you suffer an injury conducting the activity related to the waiver. This can even include a wrongful death lawsuit if the activity is dangerous enough.
When can I sue?
If you have signed a liability waiver, it’s not out of the realm of possibility that you won’t be able to sue an organization in certain situations. For example, if any of the following three situations arise, you might be able to file a lawsuit:
- Gross negligence: the company can be held liable for injuries caused by recklessness
- Defective products: you can sue the manufacturer of the product used by the company that required you to sign the waiver if a product they issue you causes an injury
- Misrepresentation: you could have a case for fraud if the company misrepresents the service they are providing and you wind up injured
The need for adventure, especially in these difficult times, often leads people to engage in dangerous activities. Skydiving, white water rafting, rock climbing, racing, and many other activities are exhilarating and breathtaking all at the same time. Just because they are risky doesn’t mean that you should avoid these activities. Instead, be sure to read through the waiver prior to signing.
If you are planning an adventure and have questions about your rights and liability waivers, speak with the Rocky McElhaney Law Firm. Call our office at 615-425-2500 or complete a contact form to schedule a consultation. We operate offices in Nashville, Hendersonville, Knoxville, and Clarksville to better serve our clients.