- February 14, 2020
- Posted by: andreamcmillan
- Category: Injury
Because of its great year-round weather, Florida offers many enjoyable recreational activities. Some of those activities can put a participant at risk of injury. Quite commonly, participants wanting to participate in an activity are required to sign a liability waiver, before being permitted to participate. For example, if you’ve ever run an organized race, such as a 5k or a marathon, or taken scuba-diving classes, or been sky-diving or rock-climbing, you were, undoubtedly, asked to sign a liability waiver before participating. Liability waivers are used by businesses and individuals to protect themselves from personal injury claims and lawsuits.
Yes, waivers exist to protect service-providers from liability, by limiting your right to sue. If you’ve been injured during an organized activity, but signed a liability waiver beforehand, you may be concerned about the effect of the liability waiver on your injury claim. In Florida, liability waivers are enforceable, as long as they satisfy certain legal criteria.
It is important to note, however, that signing a liability waiver does not absolutely destroy the legitimacy of an injury claim. If you can demonstrate that the liability waiver failed to meet certain requirements for enforcement under Florida law, then the court will not enforce the waiver, and your injury claim will not be barred.
What is a Liability Waiver?
What is a liability waiver, exactly? A liability waiver is a contract between a participant and an activity provider. Through this contract, the participant relieves the activity provider of liability, in the event of an injury. In the personal injury context, a waiver of liability is a contract that, if signed, acknowledges that the signer has surrendered his/her negligence-based personal injury claims against the activity provider.
These agreements are often seen in many sports settings and extreme recreational activities such as bungee jumping, zip lining, jet-ski rental, and other activities. When you sign a waiver, you voluntarily agree to the terms expressed in the contract. Under many of these terms, you relinquish your right to sue in case of an injury.
Typical waivers contain a combination of clauses the participant must agree to, if he/she wants to participate in a particular activity. Most liability waivers include multiple terms to cover various legal avenues to a lawsuit. Some of the most common waiver clauses include the following:
Release of Liability
A release of liability clause commonly states the participant acknowledges the risks and dangers associated with a particular activity, and will not hold the party running the event or activity, liable for any injuries suffered, due to negligence or accident. For instance, runners in an organized race often sign waivers containing release of liability clauses, where they release the activity provider from liability, for things like falling, being stepped on by other runners, and other common injuries they could face.
Assumption of Risk
An assumption of risk clause commonly states the participant acknowledges the risks and dangers associated with an activity, and is willing to participate anyway. Furthermore, the participant voluntarily and freely has to accept and assume the responsibility for all the risks and hazards associated with the activity.
Acknowledgment of Understanding
The acknowledgment of understanding clause is usually at the end of the waiver and release form. This is a recap of all preceding provisions, and states that the participant had the opportunity to review the document and clarify any doubts before the final signature. Signing a clause like this makes it harder for the signer to later claim he/she misread or did not understand the waiver.
Can I Sue If I Already Signed a Liability Waiver in Florida?
If a waiver is written properly, signing it will mean that you give up your right to sue. If you can show that there were deficiencies in the waiver, it may be thrown out, and you might be allowed to sue.
Essentially, a person signing the liability waiver at issue, must fully understand what rights he/she is surrendering, as a result. If the text of the liability waiver is not clear and unambiguous about its effect on the rights of the person signing the waiver, then a Florida court will not enforce it.
A liability waiver in Florida must meet specific criteria to be enforceable: every waiver document must be clear; unambiguous; unequivocal; and specific.
Clear
“Clear” text means the signer can understand the language used within the document.
Unambiguous
“Unambiguous” refers to the use of concrete terms, not terms open to several interpretations.
Unequivocal
“Unequivocal” refers to the specific situations to which the waiver applies.
Specific
“Specific” means that the terms address the details of the waiver, as closely as possible.
If an injury victim can prove that the signed waiver fails to meet the legal criteria to be considered valid, then he/she should be able to file a lawsuit against the negligent parties. Palm Beach County personal injury lawyer, Andrea McMillan, with The Law Offices of Andrea McMillan, can help you through this process. Contact her at (561) 612-5700.
Even if you have signed a valid liability waiver that blocks you from suing for accidents and negligence, you can usually still file a personal injury claim or lawsuit against the at-fault parties for intentional harm. Under Florida law, you cannot waive your right to sue a party, if that party’s intentional or reckless conduct caused your injuries.
For example, suppose that you go skydiving and you sign a liability waiver beforehand. If you injure yourself due to the negligence of the defendant skydiving company (perhaps your instructor made a slight mistake while touching down, causing you to injure your leg), you might be barred from asserting the injury claim.
On the other hand, you cannot be barred from asserting an injury claim based on intentional misconduct. Suppose, in the same skydiving scenario, that the instructor intentionally cuts your harness before you land, causing you to fall to the ground and seriously injure yourself. The conduct was clearly intentional. Even if the language of the liability waiver shielded the skydiving company from such claims, the waiver would not be enforceable. In Florida, you would be entitled to sue under such circumstances.
Other At-Fault Parties
You may also be able to sue other entities and individuals that are not a party to the contract, such as the manufacturer of a negligent product or safety device, or another participant or customer, who caused your injuries.
How Does A Parent/ Guardian’s Pre-Injury Signing of A Florida liability Waiver Affect A Minor Child’s Personal Injury Claim?
If a parent or guardian signs a liability waiver on behalf of a minor child, enabling a child’s participation in an activity, and the child is injured or killed during that activity, may a claim or lawsuit be brought on the child’s behalf, in spite of the waiver? The answer is: it depends.
If a child is injured during a
- school-related or
- government-sponsored
activity, and the child’s parent or guardian signed the waiver on the child’s behalf, then the court will enforce the waiver, and no negligence claim or suit will be permitted on the child’s behalf. However, if a child is injured in a commercial setting, such as an indoor playground in a shopping mall, due to negligence, then the court will not enforce the signed waiver, and will permit the negligence claim or lawsuit on the child behalf.
Though not protected from negligence claims stemming from a minor child’s injuries, commercial activity providers are protected from liability for injuries arising out of the inherent risks of the activity.
Section 744.301 (3), Florida Statutes, authorizes natural guardians (parents and guardians) on behalf of a minor child, to waive, and release, in advance, any claim or cause of action against a commercial activity provider, for a minor child’s personal injury, including death, that results from an inherent risk in the activity. “Inherent risk” is defined in the statute as:
- Those dangers or conditions, known or unknown, which are:
- Characteristic of, intrinsic to, or an integral part of the activity and which are:
- Not eliminated, even if the activity provider acts with due care in a reasonably prudent manner.
The law says that parents and guardians many waive and release claims relating to:
- The inherent risk of the activity;
- The commercial activity provider’s failure to warn of the risk inherent in the activity; and
- The risk that the minor child or another participant in the activity (excluding the activity provider, its owners, affiliates, employees and agents) may act in a negligent or intentional manner, and contribute to the injury or death of the minor child.
The Special Size, Type, and Language Required for the Child Injury Waiver to Be Enforceable
Section 744.301, Florida Statutes states that to be enforceable, a waiver or release under this subsection must contain the following Notice to The Minor Child’s Parent/Guardian:
NOTICE TO THE MINOR CHILD’S NATURAL GUARDIAN READ THIS FORM COMPLETELY AND CAREFULLY. YOU ARE AGREEING TO LET YOUR MINOR CHILD ENGAGE IN A POTENTIALLY DANGEROUS ACTIVITY. YOU ARE AGREEING THAT, EVEN IF (name of released party or parties) USES REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED OR KILLED BY PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT BE AVOIDED OR ELIMINATED. BY SIGNING THIS FORM YOU ARE GIVING UP YOUR CHILD’S RIGHT AND YOUR RIGHT TO RECOVER FROM (name of released party or parties) IN A LAWSUIT FOR ANY PERSONAL INJURY, INCLUDING DEATH, TO YOUR CHILD OR ANY PROPERTY DAMAGE THAT RESULTS FROM THE RISKS THAT ARE A NATURAL PART OF THE ACTIVITY. YOU HAVE THE RIGHT TO REFUSE TO SIGN THIS FORM, AND (name of released party or parties) HAS THE RIGHT TO REFUSE TO LET YOUR CHILD PARTICIPATE IF YOU DO NOT SIGN THIS FORM.
The statute requires that the Notice be:
- In uppercase type;
- At least 5 points larger than, and clearly distinguishable from” the rest of the text of the waiver or release.
The size and type of the printing, as well as the language set forth in the statute are minimum requirements for the waiver or release to be enforceable.
- If the notice in the waiver or release does conform to the requirements; and
- If the notice waives no more than allowed under the subsection in the statute, there is a rebuttable presumption that:
- The waiver or release is valid; and that
- Any injury or damage to the minor child arose from the inherent risk involved in the activity.
The statute further states that:
- To rebut the presumption of a valid waiver or release, a claimant must demonstrate by a preponderance of the evidence that the waiver release does not comply with this subsection;
- To rebut the presumption that the injury to the minor child arose from a risk inherent in the activity, a claimant must demonstrate by clear and convincing evidence that the conduct, condition, or other cause resulting in the injury or damage, was not an inherent risk of the activity.
By signing a pre-activity liability waiver, you must realize that by signing the waiver, you may be giving up valuable rights to seek legal recourse, in the event you or your child suffer injury during the activity. Before signing a waiver,
- Read it very carefully;
- Make absolutely sure you understand it;
- Realize the potential consequences of signing it, in the event of serious injury;
- Keep a copy of what you signed.
We’re Here For You
Did You Sign a Waiver Before Being Injured? We May Be Able to Help.
If you, or someone you know, suffered injury after signing a liability waiver, contact Palm Beach County personal injury lawyer, Andrea McMillan, with the Law Offices of Andrea McMillan, today, at (561) 612-5700, to discuss your legal rights. All consultations are confidential and free. We represent our clients on a contingency basis, meaning there are absolutely no legal fees unless you win. Call us today. We’re here for you.