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What to Do if You Signed a Waiver and Were Injured

October 26, 2019

If you enjoy an active lifestyle, you have most likely signed a liability waiver at some point in your life. For example, if you have ever joined a gym, run a marathon, gone skydiving, or simply send your children on a school field trip, the organization putting on the event or activity likely asked you to sign a few “papers” before you could partake. These waivers or releases are written and designed to protect the entity from legal liability for the participant’s injuries even when these injuries are caused by the entity’s own negligence.

Signing A Liability Waiver

Most people sign these liability waivers without even reading them. Upon closer inspection, many liability waiver agreements include strong language and essentially declare: (1) the participant will freely assume all risks associated with the event, whether known or unknown, and (2) the participant will hold the organization harmless for any injuries or damages he or she suffers, even if those injuries arose from the negligence of the organization. Given this language, one might assume that they waived all rights to any personal injury claim. However, is this true? If a waiver is signed, are you precluded from recovering monetary damages from an injury that occurs during these activities or events?

How Do Liability Waivers Work?

Liability waivers are something that most people sign and do not think twice about. In fact, some people may not realize they have even signed a waiver of liability because these waivers are often only one or two paragraphs.

A waiver of liability is essentially a contract between an individual and somebody else (another individual, business, entity) that allows the person who signs the waiver to assume the risk of injury in order to use certain facilities, participate in an activity, or attend an event. Some of the most common examples of when a person signs or agrees to a waiver of liability include:

  • Major sporting events
  • Skydiving
  • Equipment rentals
  • Bungee jumping
  • Vehicle rentals
  • Boat rentals
  • Snowboarding and skiing
  • Unguided tours
  • Hunting tours
  • Cruise ships
  • Spas before receiving a treatment
  • Before receiving medical care
  • Amusement parks
  • Concerts
  • Gyms

In many cases, a person will not be able to participate in activities unless they agree to the waiver of liability. Often, these waivers are located in the very fine print and are part of a purchase agreement.

Can You Sue For Injuries If You Sign A Waiver?

Yes, you may still sue if you sign a waiver. Signing a waiver does not prevent you from recovering damages if an injury occurs. While the waiver may make recovery a bit more difficult, the enforceability of the waiver is a legal question left for the courts to decide. In fact, here in Arizona, the assumption of risk is always a question for the jury at trial per the Arizona Constitution. Ultimately, for a liability waiver to be effective, the participant must “intentionally relinquish a known right,” and there are 3 questions the court must answer to decide if the waiver is enforceable:

  1. Was the language used in the waiver clear and unambiguous?
  2. Was the injury caused by or the result of a reasonably related act that the waiver sought protection from?
  3. Does the waiver or release violate public policy?

While the enforceability of a waiver releasing liability is contingent on a variety of factors, most of them, even if they weigh in favor of enforceability, will not necessarily preclude recovery. Because these aspects can be extremely difficult to comprehend, it is crucial to have any waivers releasing liability analyzed by an experienced injury attorney in Phoenix to determine if the injured party has a claim.

What to Do if You Signed a Waiver and Were Injured

The first step you need to take in any personal injury case is to seek medical care for your injuries. The medical professional will be able to treat your injuries. By seeking medical care, you will have established a link between the injury and the incident.

As soon as your condition is stabilized, you need to speak to a skilled personal injury lawyer who has experience dealing with waivers of liability. An attorney will understand every aspect of your case. They will be able to conduct a complete investigation into the incident, thoroughly examine the waiver of liability, and determine whether or not you will be entitled to compensation for your injuries.

What a Liability Waiver Does Not Cover

Waivers of liability are typically upheld in court. However, waivers do not cover all scenarios. Specifically, courts have generally ruled that waivers of liability will not be upheld in the event a person is harmed due to the gross negligence of another party involved. If a court determines that a company, entity, or an agent of these entities was grossly negligent and caused harm to another person, the waiver of liability will likely not apply.

Gross negligence is more than just ordinary negligence, and typically involves a party acting negligently and with utter disregard for the safety and well-being of those under their care. Intentional actions meant to cause harm to others will not be covered under a waiver of liability.

When Will a Waiver be Upheld in Court?

A waiver of liability in Arizona will generally be upheld so long as they meet certain criteria. This includes:

  • Clear language. The waiver needs to clearly state that you absolve the provider of all liability, including cases of ordinary negligence.
  • Format. The release of liability needs to be identifiable and not hidden inside of a larger document.
  • Precise list. The waiver needs to list specific risks or types of injuries that you are releasing the other party’s liability.
  • Signature. You need to have agreed to the waiver of liability with some form of signature, though this may be an electronic signature or “agreement.”
  • Legality. The waiver of liability must not violate state or federal law in terms of wording or content.

Again, regardless of whether or not all of these criteria is met for a waiver of liability, the waiver will not excuse gross negligence.

Contact Torgenson Law today if you or a loved one has suffered a personal injury as a result of another’s negligence. The legal process can be a complex one, and you will want an aggressive and experienced attorney fighting for the just compensation in which you deserve. Give us a call at (602) 726-0747.

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