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If You Signed a Waiver of Liability, Can You Still Sue?

October 19, 2016 - Personal Injury

It’s not uncommon to be presented with liability waivers in quite a wide variety of contexts – from theme parks, to recreational activities, and more – defendants routinely make attempts to limit and otherwise circumscribe their potential personal injury liability.

For example, a recreational flag football league might require that participants sign a liability waiver before competing.  The liability waiver would demand that signees relinquish all personal injury claims against other competitors.

A liability waiver is essentially a request that the signing individual relinquish all specified claims.  When signed, the plaintiff “waives” their right to sue in the event of injury.  Plaintiffs rightfully worry that by signing a liability waiver they are no longer entitled to file an injury claim, but the law is expansive enough to account for various complications. 

Signing a liability waiver is not necessarily an absolute bar to recovery.  If a plaintiff can show that the liability waiver was invalid, then they may still be entitled to assert a personal injury claim.

Validity of Liability Waivers

In Florida, waivers of liability for negligence (personal injury) are enforced as long as they meet certain criteria.

Consistent with Florida case law (Theis v. J&J Racing Promotions(1990) and Gilette v. All Pro Sports, LLC (2014)), valid waivers must be: a) clear; b) unambiguous; c) unequivocal; and d) specific.

Clear

The language of the liability waiver must be clear such that the signee understands the rights they are sacrificing by signing the waiver.

Unambiguous

The liability waiver must unambiguously state its terms.

Unequivocal

The liability waiver cannot allow for circumventing of the terms of the document.  If it is valid, it must apply to the governed situations.

Specific

The language of the liability waiver must specifically limit liability and reflect the agreed upon terms.

As such, even if a plaintiff signed a liability waiver, if they can show that the signed liability waiver is unclear, ambiguous, equivocal, and nonspecific such that the document would be rendered invalid, the plaintiff will then be able to assert their injury claims.

It is worth noting that negligence language may not be required for a liability waiver to qualify as clear, unambiguous, unequivocal, and specific.  The Florida Supreme Court in Saniso v. Give the Kids the World, Inc. (2015) ruled that a waiver need not include terminology such as “negligence” to be enforced against the plaintiff (thus preventing the plaintiff from pursuing a negligence action).  The specific reference to negligence is unnecessary if protection against “negligence” claims is the only reasonable reading of the waiver.

A liability waiver will not be enforced if it fails to meet not only the above four “waiver language” criteria, but also if it governs certain rights that cannot be waived.  In Florida, waivers of liability cannot be used to waive the right to assert claims for personal injury related to intentional conduct (i.e., assault, battery, willful conduct leading to injury, fraud, reckless conduct, and other conduct).

This is an important limitation because it prevents abuse of liability waivers and ensures that defendants exert some efforts to promote safety.

Suppose, for example, that you sign a liability waiver before entering a recreational haunted house event.  If you injure yourself as a result of some negligent action, you cannot sue (assuming the waiver is valid).  Imagine, however, that the staff spread oil out on the floor of one of the rooms and light it on fire.  These actions cause you severe burns.

The fire-setting conduct was reckless, not merely negligent, and is not protected by the liability waiver.  As such, you are likely to be allowed to sue the defendant in this scenario.

Overcoming a liability waiver requires the assistance of an experience personal injury lawyer.  If you or someone you love has been injured as the result of someone else’s wrongful acts or omissions, but you have signed a liability waiver, seek legal guidance from a skilled Fort Lauderdale injury lawyer at the Law Offices of David I. Fuchs.

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