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Who Wins in a Liability Waiver Dispute?

Liability waivers are legal documents, used when there are some risks associated with using a service or activity. The provider wants to avoid being sued if there’s an accident.

Think for example, of kids playing on sports team. Or high risk activities like bungee jumping or zip line rides. Or some school trips for your kids. These are all situations where providers ask you to sign a liability waiver to protect them if something happens to you or your child as a result of participation.

Whether you read all the small print or not, when you sign the waiver, you’re acknowledging that you’re aware of the risks of possible injury. This provides protection to the provider, if or when something happens. Sounds pretty straightforward, right? But it isn’t. There are different kinds of risks, and many different kinds of variables to be considered.

There are three kinds of situations to consider:

  1. Where the nature of the activity itself creates the potential for risk of injury – like bungee jumping, or going on a cruise; kids engaging in water sports or horseback riding, at a summer camp. Obviously, these activities all carry some risk of injury. In this first type of situation with a signed waiver, the provider is not likely to be held responsible, when there’s a recognition by the participant, of the risks associated with participating.
  2. Where the provider or other participants are negligent, creating injury for someone – like in a race, when one runner trips and bumps into another, who then falls and is injured. Or, when the school baseball coach decides to play on, even though it’s raining, and one of the players ends up slipping in the mud, and breaking a leg. With this kind of situation, unless there’s a signed liability waiver, the provider could be considered responsible, when it’s their own negligence that caused the injury. Random accidents happen. The waiver usually protects the provider, in these situations.
  3. Where the provider is “extremely negligent” with what’s been called “extreme actions such as gross negligence or reckless actions” – like when a football team owner, even with mounting medical evidence, doesn’t properly advise the players of all the long term risks associated with repeated concussions. In this kind of situation, even with a waiver, in situations of “extreme actions”, the provider usually isn’t protected.

Liability waivers can also be explicit (in written format, like before going into surgery) or implied (like when a viewer gets hit by a rogue fly ball at a baseball game – there’s an implicit assumption that viewers are aware of the risks of attending a ball game.)

For example, in the summer of 1981 in Georgia, during extreme heat and humidity, a long distance runner collapsed, suffering multiple serious injuries.  It was due to the intensity of the race combined with the severe weather conditions. The first time this case  was heard in court (Williams v. Cox Enterprises Inc), the courts sided with the race organizers, since the runner had signed a liability waiver. The runner appealed.  But the original decision was upheld on appeal, because the runner had knowingly signed the waiver, and admitted to being aware of the potential risks.

That’s why it helps, if there’s been an injury after you have signed a liability waiver, to have legal representation to sort out the complexities. If you have been injured, talk to a personal injury attorney to find out whether gross negligence or recklessness was a factor in your injury. 

 

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