Beware of Liability Waivers and Releases

roller coaster running that requires liability waivers

We often fail to give liability waivers a second thought before signing. But any Missouri personal injury attorney would urge you to think critically through day-to-day examples. Would you hire a plumber who refuses to warranty his work? Would you work with a contractor who refuses to guarantee he will roof your house properly? Would you retain a professional like a lawyer, doctor or architect if they are not insured?

We’re guessing your answer to these questions is “No.” Maybe even a loud “NO!”

With that in mind, ask yourself: Why do you sign documents without question, waiving your ability to hold people around your family responsible for their safety? We bet you have repeatedly done so, probably without realizing what you are doing.

For instance, one of our local parishes previously co-hosted a soccer tournament with a local soccer club. The sponsors required each player to sign a “Waiver & Release of Liability” as a condition of playing.

These liability waivers direct that “in consideration of being allowed to participate,” the player — and their parent — agree to prospectively release the club and the parish athletic association from various harms resulting from several factors, including the sponsors’ negligence.

As Missouri personal injury attorneys, we know that state law explicitly defines “negligence.” In this instance, “negligence” is the failure of one to do that which an ordinarily careful person would do under the same or similar circumstances.

In exchange for your money, the club and the parish require you to prospectively forgive them for any harms, losses or injury your child may suffer because the organization’s members failed to do what an ordinarily careful person would do.

After seeing the details in everyday liability waivers, would you still hire a plumber under those circumstances? A roofer? A family physician? A Missouri personal injury attorney?

Everyday Liability Waivers

The situation facing the folks in local parishes and neighborhoods is not unique, especially if you maintain an active family life. Last weekend your child may have attended a birthday party at a recreation center where the main features were rock climbing, jumping on a trampoline or playing in a bounce house. You may have personally run in a 5K earlier this spring. Or your son or granddaughter may have practiced at a local batting cage in preparation for the baseball season.

If so, you likely saw some form of the “Waiver & Release” — a pre-printed form given to you by a business hosting an activity or event. Liability waivers typically require you to provide your identifying information — name, address, telephone number and date of birth — and agree to relieve the host from “any and all liability” arising from a failure to provide a safe environment. You must sign a form like this before they permit you or your child to participate.

Our Missouri personal injury attorneys have seen more and more businesses demand their customers sign these forms to use their gym, equipment, course or premises. Clauses shielding the business from fault and liability may be found in everything from summer camp and daycare applications to sporting event forms and recreation agreements. All consumers must be aware of these clauses and think twice before signing any liability waivers that require you to agree “to release, indemnify or hold harmless” the host.

The Problem with “Release, Indemnify or Hold Harmless” 

The 7th Amendment of the U.S. Constitution guarantees all citizens the right to have any dispute decided by a jury of their peers. This phrasing is a contractual provision in which the consumer gives up this federally protected right.

As Missouri personal injury attorneys, we boil down the language inserted in the “Waiver & Release” forms — basically, your signature acknowledges some benefit you supposedly receive “in consideration of” the business permitting you to use its facilities. The end goal of liability waivers is to provide the business with a shield to protect it from liability should you or your child be injured due to the negligence of the ownership or employees.

The Reasoning Behind Contract Clauses

Companies love “Waiver & Release” forms. They make it easier to win any dispute that may follow the business’ failure to use ordinary care to provide a safe environment for its patrons. In essence, the company’s lawyers point to the language as a procedural bar to your access to the civil justice system. Rather than focus on the harm and loss suffered by you or your family member and the failure of the business and its employees to do what the law requires them to do, the court looks toward liability waivers as a simple, procedural solution for the dispute.

Our Missouri personal injury attorneys see this approach as “form wins over substance” — the company effectively blocks your access to the courts through your agreement to “release, indemnify and hold harmless” the business in exchange for your patronage.

The company may also use the form as a substitute for insurance. Insurance exists to protect people (and their employers) from those mistakes. In exchange for payment of a premium, the insurer provides coverage to the business for any harm that may result from negligence.

“Waiver & Release” forms may be the mark of an irresponsible business. Responsible businesses insure their employees and their activities, if only for the sake of their clients.

The Steps Ahead 

Any responsible Missouri personal injury attorney would urge you to read all contracts and liability waivers before you sign. Do not sign away your constitutional right to a jury trial — it will be invaluable should a dispute arise. If you see a clause that appears to take away your access to the courts by using words like “release,” “indemnify,” “waive,” “waiver,” “hold harmless” or “limit liability,” you should take action by:

  • Strike the clause by running your pen through the language you believe to be problematic.
  • Refuse to sign the form.
  • Find another company, association or sponsor to give your business — after all, you are paying for the activity!

Speak up if the company refuses to work with you. Tell the person you do not agree to waive your constitutional rights. Some companies honor your request to take the clause out or let you or your family member participate in the activity without signing liability waivers.

If the business refuses and insists that you must sign the form or be barred from participating, you may still have options if a dispute arises later. You may argue the contract is a contract of adhesion or that its terms are vague or ambiguous — which is not legally enforceable. From there, you will need a Missouri personal injury attorney on your side. And, perhaps, a bit of luck.

Contact Casey, Devoti & Brockland

Matt Devoti is a partner with Casey, Devoti & Brockland, a St. Louis-based personal injury law firm. Matt handles a variety of legal issues, with an emphasis on victims of drunk, impaired and distracted driving. Have a personal injury case for Matt Devoti? Contact Casey, Devoti & Brockland to set up a free consultation today.

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