Whether it’s signing up for a trail horseback ride, joining a gym, taking a scuba diving lesson, going skydiving, riding on an all-terrain vehicle, or jumping on a trampoline there are many activities that will require you to sign a release of liability waiver. Once you sign these liability waivers, you consent to take on the risk of the activity you wish to partake in. Essentially, you are signing a document that says you will not sue those in charge of the activity should you get injured while participating. A liability waiver means that YOU are assuming the risk of the activity. But what are the real legal effects of signing this document, and are liability waivers always upheld? Read on to learn more about the ins and outs of a release of liability waiver, as well as what will happen if you ever get hurt after signing one of these documents.
How Does a Liability Waiver Work?
Liability waivers are legal contracts that you are expected to read before signing. While liability waivers are legal contracts, not all liability waivers are created equal and not all are legally enforceable. The strength of a liability waiver largely depends on how well it is used in conjunction with negligence prevention by the company or organization asking you to sign it.
The following are the general rules of liability waivers:
- The waiver should be clearly worded and unambiguous regarding the intent to relieve any and all legal liability, even regarding negligence.
- The waiver should be prominent and not misleading through a fine print contract.
- The waiver must be signed by the person it will be used against.
The Many Aliases of a Liability Waiver
Don’t be fooled when signing a release of liability waiver, these little documents go by a number of different names. The most common aliases of a liability waiver are:
- Indemnity agreement
- Release of liability
- Waiver of rights
- Waiver of liability
- Hold harmless agreement
- Assumption agreement
- Pre-injury release
- Exculpatory agreement
- Assumption of risk
Before signing any document labeled as such, understand that all of these types of documents essentially mean the same thing. Signing these types of documents is a way that a company will argue that YOU are assuming the risk of an activity and that you will not sue for any personal injuries sustained.
Should I Sign a Release of Liability Waiver?
If you want to participate in any activity that is associated with any type of risk, you will most likely be expected to sign a liability waiver. If you want to participate in the activity, most companies will not allow you to avoid signing the waiver. In many circumstances, there is nothing wrong with signing a liability waiver. However, always be sure to read the agreement carefully before giving your signature to know what exactly the activity or risk that you are waiving. The main purposes of a liability waiver are to document in writing that you have been warned about potential risks and that the company is attempting to remove their responsibility if you are injured during the activity.
Is a Release of Liability Waiver Always Upheld?
In the situation where you have signed a liability waiver and were injured, there are circumstances that could lead to the waiver not being upheld. These cases are often complex, and the assistance of an experienced personal injury attorney will be needed to navigate the case.
The Nevada Supreme Court has ruled that in order for a litigant to have assumed the risk, two requirements must be met. First, there must have been voluntary exposure to the danger. Second, there must have been actual knowledge of the risk assumed. See Sierra Pacific v. Anderson, 77 Nev. 68, 358 P.2d 892 (1961). Considerations should include but are not limited to, the following: the nature and extent of the injuries, the haste or lack thereof with which the release was obtained, and the understandings and expectations of the parties at the time of signing. See Renaud v. 200 Convention Center Ltd., 102 Nev. 500, 506, 728 P.2d 445, 441 (1986).
The following are the most common situations where a release of liability waiver would not be upheld:
1. Defective Products
In the case that you were injured due to defective products provided by the company or organizations that required you to sign a release of liability waiver, you may retain the ability to sue the manufacturer of the product under product liability. Nevada is a strict products liability case. In Nevada, the elements for a claim strict product liability are: 1) that the product was defective; 2) that the defect existed when the product left the defendant’s possession; 3) that the product was used in a manner that was reasonably foreseeable by the defendant; and 4) that the defect was a cause of the damage or injury to the plaintiff.
2. Gross Negligence
In the case that your injury is a result of gross negligence, such as extreme recklessness or complete disregard for safety, you may retain the right to sue even after signing a liability waiver.
In the case that the company or organization misrepresented their service or activity, you may be able to file a fraud case against them. In this situation, the liability waiver would not be upheld as the document was misleading in nature. Misrepresentation or concealment of important facts is one of the most common ways to void a liability waiver. For example, if you are going on an ATV ride and the company represents that their vehicles are well maintained and in excellent mechanical condition and it later turns out that you were injured because the brake pads were worn down to an unsafe point, you will be able to argue that the waiver should not be enforced because you were not waiving the risk of the vehicles being rented to you in an already unsafe condition.
Consult with an Experienced Personal Injury Attorney Today
While we hope you never find yourself in a situation where you have been injured after signing a release of liability waiver, we are here to help if the situation does arise. This can be a difficult situation to navigate alone. Working with an experienced personal injury attorney will be your best chance at reaching your desired outcome. Do not leave your personal injury case up to chance. Contact us today to schedule a consultation.