Waivers of Liability: Have I signed my Legal Rights Away?

by Samfiru Tumarkin


Friday, October 31st, 2014 at 7:31 pm


A few years ago, one of our clients fell off of a horse at a horse riding camp. She suffered from broken bones, cuts and scrapes, and a bruised ego. Because our client fell off of the horse as a result of the camp’s negligence, we sued the camp, as well as the instructors employed by the camp, for breaching the duty of care that they owed our client.

Through the litigation process, the camp informed us that our client had signed a waiver of liability as she completed the camp registration form; holding the camp harmless for any injury that she suffered while riding one of their horses. The camp suggested that our claim would fail, as our client contracted out of any duty of care owed to her while she was at the camp, through the execution of the waiver.

We were not able to dispute the fact that our client signed the waiver as a part of her application to the camp.

Is the fact that an individual signs a waiver of liability enough to extinguish any recourse against a negligent party?

Not necessarily.

In order to determine if a waiver of liability is binding, the courts consider three questions:

 

When the plaintiff signed the waiver, was the plaintiff aware that he or she was limiting his or her legal rights?

While answering this question, many factors are considered. For example:

      • Whether the plaintiff knew that he or she was signing a waiver or whether he or she simply believed that it was an entry form.
      • Whether the contents of the waiver were pointed out to the plaintiff while he or she was signing the waiver.
      • The plaintiff’s age.
      • The plaintiff’s first language.

 

Is the waiver broad enough to covers the injuries that were suffered by the plaintiff?

For example, if the waiver indicates that the camp will not be responsible for any physical injuries, the plaintiff may be able to make a claim for psychological injuries that he or she suffered.

 

Is the waiver unconscionable?

If the plaintiff is able to show that there was a great inequality between him or her and the other party, or substantial unfairness, the waiver could be deemed unconscionable.

 

In our case, the waiver was not binding on our client because we were able to show that she was not of the mental capacity to understand that, by signing the waiver, she released her legal rights.

If you or a family member are in a situation where you have been injured, after signing a waiver or not, contact a lawyer with experience in personal injury litigation. Especially in waiver cases, each case is unique and must be dealt with very carefully.

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