Life is full of risks. From the moment we step out of bed in the morning until the moment we go to sleep at night, we are at risk of getting injured.
Many of the risks we face cannot be foreseen. But when we knowingly engage in some types of activities, such as sport or recreation-related activities, there is a certain amount of risk-taking involved. These risks may be acknowledged—and shifted—in agreements known as liability waivers.
Liability waivers are, in most cases, legally enforceable contracts between property owners and people who enter onto an owner’s property to participate in some type of activity. If you sign a liability waiver and are subsequently injured, you could be prevented from recovering compensation for your injuries. But not all liability waivers are valid and enforceable.
Don’t just take the property owner’s word for it that you can’t file an injury lawsuit. Talk to the Texas personal injury lawyers at Jim Adler & Associates to make sure you understand your rights.
What is a Liability Waiver?
A liability waiver, also known as a release of liability, is a contract between two parties in which one party gives up their rights to make certain legal claims against the other party. Liability waivers can be included as part of a larger contract or used as a standalone agreement.
In essence, a liability waiver is a shifting of risk. When you sign a liability waiver, you are acknowledging that something bad might happen, and that you could possibly hold the other party legally responsible if it does happen, but by signing the release, you are agreeing not to hold them responsible—even if they are at fault.
Where are Liability Waivers Used?
Liability waivers are commonly used in connection with activities that are inherently risky, such as:
- Horseback riding
- Rock climbing
- Visiting an amusement park
- Using a gym
- Contact sports such as martial arts or wrestling
- Parachuting or skydiving
- Hitting golf balls at a driving range
- Handling or using toxic chemicals
- Being in a construction zone
Waivers usually apply to customers, not employees, because workers’ compensation laws generally don’t permit employees to sue their employers. However, liability waivers may be used for independent contractors. Some companies have used COVID-19 waivers for contractors who might contract the virus, according to Bloomberg Law.
Are Liability Waivers Enforceable?
Liability waivers in Texas are generally enforceable as long as they are written correctly. Under Texas law, that means a waiver must meet the requirements of fair notice, which include:
- Satisfying the express negligence doctrine; and
- Being conspicuous
To satisfy the express negligence doctrine, the party seeking a release of liability must express this intent clearly and without ambiguity. Texas A&M explains that a liability waiver should be specific about the types of legal claims and activities that apply to it. Too much ambiguity about the release’s terms could result in a contract that is not enforceable.
For a release to be considered conspicuous, it must not be difficult to find or notice. The liability waiver can’t be buried in the fine print, hard to find, or in tiny text that an ordinary person would not be able to read. Texas courts have ruled that, among other things, liability release language should appear in large type, contrasting colors, or otherwise call attention to itself.
Unresolved Liability Waiver Issues
Texas courts have repeatedly weighed in on the issues of express negligence and conspicuousness and there is a large body of case law supporting them. However, some liability release issues in Texas are less clear cut. They include whether releases can waive liability for gross negligence (i.e. deliberate and reckless acts that are beyond simple negligence) and whether a liability release signed by a parent on behalf of a minor child is enforceable.
Don’t Give Up Without a Fight. Call Jim Adler & Associates
The law regarding liability waivers is complicated and nuanced. Within the fine print of the contract, or the minutiae of how you got injured, could be a detail that makes or breaks your case.
You might have signed a release form prior to being injured and have been told that now, you cannot file a personal injury lawsuit. But don’t take their word for it. They’re trying to protect their interests. You need somebody to protect your interests. You need Jim Adler & Associates. There are lots of personal injury lawyers in Texas, but there’s only one Texas Hammer. Call 1-800-505-1414 or contact us and we can review your liability waiver case, free of charge.