Can You Still Pursue Legal Action If You Signed a Liability Waiver?

Due to the nature of the activities, liability waivers are everywhere in risky situations. However, these documents limit the provider’s liability for the injuries or damages caused.

Overview of Liability Waivers and Their Common Usage

Liability waivers, also called “release of liability” agreements, are a type of contract that a participant signs to give up the right to sue the service provider if he or she gets injured. These are used in different sectors, from recreation activities such as skydiving and gym memberships to events and services that can harm people. The main purpose of these waivers is to effectively convey the risks involved, enabling the individuals to make a choice of their own with a clear understanding of what they are getting into.

Key Question: Enforceability of Waivers

The enforceability of liability waivers in California is based on the legal requirements. Conventionally, these waivers are valid against claims for ordinary negligence, provided they are clearly stated and voluntarily signed without coercion. Nevertheless, they do not cover gross negligence, willful misconduct, or other serious types of negligence, which are the actions of the service provider that show a large deviation from the standard of care required in such conditions.

California laws are especially strict in the public interest or consumer protection cases.  For example, waivers have to be expressed clearly and include the activities that are covered and the risks that are linked to them, and the ambiguity in these documents is usually interpreted against the drafter. Besides, a waiver that tries to free a service provider from the responsibility for gross negligence is normally not enforceable because it contradicts the public policy, which aims at preserving safety standards.

Potential for Legal Action Despite Signing

California courts usually uphold pre-injury liability waivers, especially in recreational sports. Therefore, the waivers are not usually related to the public interest and are not regarded as void against public policy. Notably, the California Supreme Court in the City of Santa Barbara v. Superior Court (2007) supported this viewpoint and stated that such agreements that release liability for future ordinary negligence are usually enforceable unless they involve gross or ambiguous negligence.

In essence, liability waivers are a usual legal method for handling risk, but they do not provide absolute protection against all legal claims. The usefulness of the liability waiver can be questioned, particularly when the waiver is unclear, the signing is under duress, or the negligent act is beyond ordinary negligence.

1. Examples of Where Waivers Are Typically Used

Liability waivers are used in a variety of settings where risk is inherent:

• Recreational sports: Many sports facilities require participants to sign a waiver acknowledging the physical risks involved in the activity.
• Adventure activities: Companies offering activities like bungee jumping, skydiving, or scuba diving use waivers to inform participants of potential dangers and limit legal liability for injuries during these high-risk activities.
• Events and venues: Organizers of events like marathons or concerts or venues like amusement parks often use waivers to prevent lawsuits related to accidental injuries on their premises.
• Educational settings: Schools and colleges may require students and their parents to sign waivers for various extracurricular activities, even those that might seem low risk, to cover any potential incidents that could occur on school property or during school-sponsored events.

2. Enforceability of Liability Waivers in California

In California, the enforceability of liability waivers is primarily judged based on how clearly and specifically they have been drafted. The waiver must clearly outline the risks involved and the rights being waived, and it must be signed voluntarily by an informed participant. ​ 

California courts consider enforcing liability waivers if the document is clearly and accurately worded. The release must clearly outline the risks involved and the rights being waived, and it must be signed voluntarily by an informed participant. Courts will not enforce waivers that are ambiguous or misleading. Furthermore, the waiver must be conspicuous within the document, meaning it cannot be hidden within a fine print or buried in a lengthy contract. 

Clarity and Scope of Waivers

For a liability waiver to be enforceable in California, it must be clear and specific about its scope of activities and the associated risks. The language used must not be overly broad or vague. For instance, if a waiver covers an activity such as rock climbing, it must specifically address the risks inherent to rock climbing. Courts look unfavorably on waivers that attempt to cover all possible injuries, no matter how unrelated to the activity they might be.

Legal Exceptions (Public Policy, Gross Negligence, etc.)

Liability waivers in California are subject to certain legal exceptions. They cannot contravene public policy and are not enforceable against claims of gross negligence, willful acts, or illegal activities. For example, a waiver signed for a skydiving experience cannot protect a service provider if they act with gross negligence, such as failing to provide functional safety equipment. Such actions go beyond ordinary negligence and are treated severely by the courts. 

3. Conditions Affecting Waiver Validity

Situations that can invalidate waivers:

Duress or Undue Influence:

Waivers signed under duress or undue influence are not enforceable in California. This condition applies when an individual is coerced into signing a waiver through threats, wrongful pressure, or manipulated consent, which undermines the voluntary nature of the agreement. Courts will typically invalidate any waiver signed under these circumstances, as they do not reflect a genuine and informed agreement of the parties involved.

Ambiguity or Lack of Specificity:

For a liability waiver to hold up in court, it must clearly and unambiguously describe the scope of activities and the risks involved. It might not be enforceable if a waiver is vague or if there is room for multiple interpretations of what is covered. The courts are likely to side with the signer of the waiver in such cases, especially if crucial information concerning the risks of the activity was not explicitly stated.

Unconscionable Terms or Unfair Advantage:

A waiver may also be invalidated if it contains unconscionable terms or takes an unfair advantage of the signer. This applies to waivers so one-sided that they shock the conscience or where the terms are so extreme as to appear unjust. This could involve situations where the waiver attempts to exempt a service provider from all liability, even for risks that are extraordinary and not inherent to the activity. Such waivers are seen as overreaching and are not upheld by California courts.

4. Legal Actions Despite Waivers

Scenarios Where Legal Action is Still Possible

Even with a signed liability waiver, certain conditions allow for legal action to be pursued. Notably:

1. Gross Negligence and Intentional Harm. Waivers do not cover incidents where the provider’s actions constitute gross negligence or intentional harm. In such cases, the waiver is often set aside, allowing the injured party to seek legal recourse despite any prior agreement not to sue.
   • The Waiver Society Project
2. Consumer Protection Violations. A waiver may be considered invalid if procured through deceptive practices, such as misleading information about the risks involved. This protection ensures that consumers are not unfairly coerced into signing away their rights without full disclosure.
   • Matthiesen, Wickert & Lehrer, S.C.
3. Fundamental Breach of Contract. If the service deviates significantly from what was agreed, causing harm or injury, this could invalidate a waiver. For example, the waiver might not protect the service provider if safety protocols are grossly ignored.
   • Watt Tieder – 50 State Survey

Impact of Gross Negligence and Intentional Harm on Waivers

Liability waivers generally exclude protection for service providers in cases of gross negligence or intentional misconduct. The legal system imposes severe penalties in such scenarios to discourage negligence and ensure public safety.

Consumer Rights and Protections Against Deceptive Practices

Consumer laws protect against unfair or deceptive business practices. These laws are critical in ensuring liability waivers are signed fairly and transparently. If a waiver is found to have been signed under false pretenses, it can be contested and potentially deemed unenforceable.

5. Practical Tips: How to Assess the Validity of a Waiver Before Signing

• Read Carefully and Understand: Before signing any waiver, thoroughly read and understand every part of the document. Look for language specifying what rights you are relinquishing and under what circumstances.

Consumer Rights and Waiver Validity

• Check for Clarity and Specificity. The waiver should clearly describe the risks associated with the activity and specify the scope of the waiver. It should not contain vague or overly broad language.
• Look for Unfair Terms. Be wary of unusually harsh or one-sided waivers. Such terms might not be enforceable. Waivers should be fair and not exempt organizations from all liability, especially for gross negligence or intentional misconduct.
  Seek Legal Advice if Uncertain. Consult a lawyer if you are unsure about the implications of signing the waiver.
  

What to Do if You Got Injured After Signing a Waiver

• Seek Medical Attention. Your health is the priority. Before taking any legal steps, ensure you receive the appropriate medical care for your injuries.
• Document the Incident and Your Injuries. Document everything about the incident that led to the injury as soon as possible.  Take photos, save medical reports, and write down your recollection of the event.
• Review the Waiver with Legal Assistance. Consult a lawyer to review the specific terms of the waiver and the circumstances of your injury. A legal professional can advise you on the potential for a legal claim. Especially if the injury resulted from gross negligence or conditions not covered by the waiver.
• Consider Legal Action if Applicable. You may have grounds to pursue a legal claim against the service provider, even if you signed a waiver. If the waiver is invalid or unenforceable under your circumstances, this could be the case.