Waivers May Trump Finding Of Negligence By A Nutt At Isnare.com Ezine Articles

Many businesses and organizations that provide activities for clients have participants sign liability waivers that are meant to release the business from responsibility if a client or participant is injured.

Waivers may trump a finding of negligence if a business is sued. However, they need to be carefully worded and vetted in order to be valid. If not, you may find yourself in just as much legal trouble as if you had not asked for a waiver in the first place.

Consider a canoeing company. A family rents a canoe for a trip downriver. The canoeing company has them sign a standard waiver exempting the company from any liability for any event and the family takes off down river.

During the trip, the seat on the canoe snaps, sending the father crashing to the canoe floor, then flinging him against the side of the canoe, knocking him unconscious, giving him a concussion, and requiring a hospital visit for stitches.

The family sues the canoeing company despite the liability waiver they signed. Is the canoeing company free and clear with no worries about losing the suit? No. The family could possibly win, despite the signed waiver.

If you want the waiver to trump a finding of negligence, then the waiver needs to be air tight, reviewed by a competent attorney, and in compliance with the laws of the state.

Without the proper wording, the waiver is worthless.
Keep in mind that the courts have a bias against the waiver in the first place. Because the liability waiver attempts to lift an accepted common law burden of reasonable care from the business owner and shift it to the customer, the court does not favor the agreements as a matter of course.

The waivers attempt to make the customer completely and solely responsible for his injuries, even if they were caused or exacerbated by the negligence of the business.

In fact, there are several states that completely ignore liability waivers, finding that they are void simply because they attempt to override the understood agreement between business and customer.

In order to decide whether or not a waiver should be accepted, a court will examine it carefully and consider questions like these:

Is the waiver stated in clear language that is understandable to the client?

Does it say without any confusion and in very direct language that a client is agreeing to dismiss any possibility of liability from the person or entity?
Was there enough explanation about any risks given to the client so that they know exactly what it meant to sign the waiver and to accept the risk and liabilities?

Is the waiver easy to see, direct and written in large enough print that there is no doubt of the meaning and intention of the waiver?

If a company cannot answer a solid and positive Yes to these questions, then it is possibly that waivers would not trump a finding of negligence.

If a court determines that rights were waived unknowingly by a client, then there is a good chance that in many states, even a clearly worded waiver would be rejected.

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