Hi everybody! For LTG segments I try to vary between academic concepts and more practical law-talking. Today I’m focused on the latter, and going to write a bit about liability waivers. Unlike Constitutional law, which is federal and generally applicable nationwide, liability waivers are governed by state law. While the concepts discuss here will likely be similar in your state, please contact a local lawyer if you have any concerns.
Anyway, a liability waiver is a document one signs in which one agrees not to sue specific parties if something bad happens. These are very common, and if you’ve done almost anything outside of your home you’ve probably agreed to many of them.
The oft-asked question is whether these are enforceable. The oft-given lawyer answer is “sometimes, depending.” Beyond that, the waiver likely is enforceable if a few facts are true: (1) you knowingly signed the waiver, (2) you received something of value in return for signing the waiver; (3) you’re not waiving gross negligence; and (4) there’s no law preventing the waiver.
Most of that is fairly straightforward, but (3) is an important legal concept. “Negligence” is the common legal standard to determine if there is fault in an accident. The short version is whether a duty was owed, whether that duty was breached, whether harm occurred, and whether breaching the duty caused the harm. The basic idea is we usually have a basic responsibility to not damage the people and objects around us by exercising reasonable care, and the law usually allows people to contractually waive negligence. However, the law also usually recognizes the concept of “gross negligence.” Gross negligence is more than just a mere accident or mistake, it’s a conscious decision to disregard normal conduct in a way that has a good chance of harming somebody.
If you’re still reading at this point, wow, that’s cool, and thank you. The takeaway should be that if you sign a waiver to take part in an event, that waiver is probably valid, but there are factual and legal exceptions so if something goes wrong, speak to a professional. If you have a business where injury may occur, use a well drafted waiver if you can.