Activities including beach rentals, bungee jumping, and gym memberships require accident waivers. If you get hurt in one of these activities, does a “not responsible for accidents waiver” mean that the business owner doesn’t have to pay for your injuries?
The correct answer is “it depends.” Most people don’t realize that a liability waiver is a legal contract between the person signing it and the business (or individuals) named in the waiver. This means that if the liability waiver meets certain requirements, it is enforceable. However, in California, liability waivers only protect a business from “ordinary negligence.” If an injured person can show evidence of “gross negligence,” he can sue for damages, even after signing a “not responsible for accidents waiver.”
What is a “not responsible for accidents waiver”?
A “not responsible for accidents waiver” goes by many names, including the following:
- Release of liability
- Waiver of rights
- Waiver of liability
- Assumption of risk
- Hold harmless agreement
- Pre-injury release
- Exculpatory agreement
- Indemnity agreement
Whatever the name, these agreements assign liability for injuries to the person signing the agreement. That person agrees to assume the risk of engaging in the activities described in the agreement. If the signer gets hurt, she can’t sue the business or activity sponsor for injuries related to the waiver. The waivers also prevent family members or legal representatives from suing for wrongful death, loss of consortium, and other losses.
In 2007, the California Supreme Court ruled that waivers shouldn’t release providers of recreational activities from liability for gross negligence. While liability waivers protect businesses against ordinary negligence, agreements that waive liability for acts of gross negligence are unenforceable. The Court said that agreements prohibiting lawsuits by victims of gross negligence violate public policy.
Is a “not responsible for accidents waiver” legal in California?
Is it legal for businesses such as rock climbing gyms to say they can’t be sued for any injuries on the premises? Invitees, such as people visiting a gym to rock climb, must sign a liability waiver before participating. If the waiver meets the following requirements, it is legal and enforceable.
Elements of a valid “not responsible for accidents waiver” in California:
- The waiver must clearly explain what activities it covers and the risks of those activities.
- Written releases must explicitly state the rights the signer is waiving.
- The injuries and causes of action covered by the waiver must be related to the activities described in the document.
- Liability waivers must be clearly identifiable and not hidden within other documents a participant must sign.
- The print size of waivers must be easily readable.
In addition to these requirements, a business cannot pressure a person to sign a waiver or hide or minimize the purpose of the document.
If any of these elements do not exist, an injured person may be able to say that he did not voluntarily assume the risk of participating. If that is true, the agreement could be invalidated.
What rights are given up in a liability waiver?
“Not responsible for accidents waivers” typically cover activities that carry a risk of injury. Such activities include recreational sports, horseback riding, skydiving, surfing, kayaking, hiking, and many more. Providers of these activities want participants to know that accidents happen. A liability waiver says that if a participant is injured in an accident related to the activity, the participant is responsible for all costs and damages related to the accident. In most situations, a waiver protects providers even when their negligent actions cause injuries.
Activities That Include Liability Waivers
Waivers are more common than most people realize. Daily examples include
- tickets to sporting events (you can’t sue if a baseball hits you at a baseball game)
- Permission slips for student field trips
- Registration for recreational sports participation
- Fitness classes like yoga and CrossFit
- Tickets for concerts and performances
- Signing up for volunteer activities
Liability Waiver Wording
Releases of liability are usually written as broadly as possible. A typical waiver says that the signer agrees not to sue for any injuries, death, or damages sustained while on the premises or participating in the listed activities. The waiver also says that no one else will sue based on the signer’s injuries. This prevents a spouse from suing for wrongful death. Valid waivers must state the rights the signer is giving up. Examples of language found in “not responsible for accidents waivers” include the following:
- “I agree to release {company/activity sponsor} from all liability or responsibility whatsoever for personal injury, property damage or wrongful death however caused, or arising out of, directly or indirectly, including but not limited to the negligence of the release parties, on behalf of myself and my heirs.”
- “{Signer} assumes and holds harmless {company/event sponsor} from any and all claims, directly and indirectly, resulting from participating in {activity}. I fully understand the scope of this activity, and I voluntarily sign this form.”
- “I, my heirs or legal representatives, forever release, waive, discharge and covenant negligence or other acts.”
How is gross negligence different from ordinary negligence?
The California Supreme Court has explained the difference between ordinary negligence and gross negligence by saying
“ ‘ordinary negligence’ – an unintentional tort – consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm…‘Gross negligence’ long has been defined in California and other jurisdictions as either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct.’”
This explanation was provided in City of Santa Barbara v. Superior Court of Santa Barbara, which changed the legal landscape for organizations using liability waivers. This 2007 California Supreme Court case said that a “not responsible for accidents waiver” cannot protect providers of recreational activities from all liability. In some circumstances, the court explained, a defendant’s gross negligence causes the victim’s injuries. In those situations, a jury should decide whether the waiver is valid. Consequently, a waiver cannot unequivocally prevent a lawsuit.
How Can A Long Beach Premises Liability Attorney Help You?
Your Injuries Are Personal To Me
People injured after signing a “not responsible for accidents waiver” often feel confused and frustrated. Many victims struggle with understanding the scope of the waiver, whether it covers their injuries, and whether it is valid, given the circumstances of the accident. Your injuries are personal to me. As a seasoned premises liability attorney, I will help you understand your legal options. My 35 years of experience with complicated premises liability cases means that I understand the nuances of liability waiver law. I will fight for you to obtain maximum compensation.
Call the Law Office of Michael D. Waks at 888-394-1174 today to discuss your situation. You can also contact me through the convenient online contact form. I offer a free consultation with no further obligation. You owe nothing unless you recover compensation for your losses.