As an experienced Omaha personal injury attorney, I regularly meet clients who have been injured during a recreational activity, sports event, even children’s activities, field trips and church outings, where someone previously signed a waiver of liability. People with life-changing injuries have given up pursuing a claim, because they signed a waiver, so there was nothing anyone could do. The very mention of a signed waiver often engenders a sense of despair, leading them to believe they've forfeited any hope of seeking compensation for their injuries.
Before you give up, let me tell you: There may still be hope.
Liability waivers, also known as "release of liability" forms, are commonly employed by companies to insulate against legal claims if a participant is injured during an activity. With a few broad pronouncements about the inherent risks of an activity, businesses try to shift the cost and responsibility for participant safety, to the participant. This is bad policy. Waivers create no incentive for business to hire qualified staff, train their employees, inspect their equipment, or make repairs when things wear out.
Even though bad policy, these waivers are common, and often, legally speaking, they do carry significant weight.
But let me be clear – signing a waiver does not necessarily strip you of all legal recourse.
Firstly, the enforcement of waivers varies greatly from state to state, with some states being more lenient, and others stricter in their interpretation and enforcement of these agreements. The legal hurdles you might face in pursuing a personal injury claim can therefore be jurisdiction-specific.
Secondly, waivers rarely absolve a company of liability for gross negligence, reckless conduct, or intentional harm. If the conduct of the company, or its employees, can be categorized as such, a waiver might not protect them.
Thirdly, the waiver must be "clear and unambiguous." This means that it should be straightforward, with its terms and conditions easy to understand by a reasonable person. If it’s too complex or buried in fine print, courts may deem it unenforceable.
Finally, even in instances where the language of the waiver is clear, some states follow the "doctrine of unconscionability," which basically means that a court will void a contract if it's deemed too one-sided or provides no benefit to the other party.
As a lawyer, I've had the privilege of representing numerous clients who had initially given up on their claims because of a waiver they signed, only to secure a favorable outcome following a detailed examination of the circumstances surrounding their case. I've successfully challenged these waivers, where courts have thrown them out, or the businesses abandoned trying to enforce them, on grounds of gross negligence, ambiguous language, and unconscionability, among others.
Navigating through this legal maze can be complex and daunting. But, as I've reiterated above, a waiver doesn't necessarily mark the end of the road for your claim. If you or a loved one has been injured in an activity where a waiver of liability was signed, I strongly recommend reaching out to an experienced personal injury lawyer to evaluate your case.
Remember, the law is nuanced, and having a professional in your corner can often make the difference between your voice being silenced and your voice being heard. Stand tall, and don't let a piece of paper rob you of your rights.
