If you’ve ever been skydiving, bungee jumping, go-karting, or horseback riding, you’ve likely signed liability waivers. The release of liability form is a way for property and business owners to protect themselves from lawsuits that could ruin their finances. Lawsuits by clients and visitors are so prevalent, in fact, that many businesses may require you to sign a liability waiver even for benign activities such as using a gym.
If you sign a waiver and then get injured, you may be barred from suing the company – even if there is evidence that the company was negligent. Negligence means the failure to use the ordinary level care required under the circumstances. So, if the bungee jump company doesn’t follow the exact procedures for maintaining its rope, and you get injured as a result, you may be unable to get any compensation for your injuries.
If you’ve been injured while partaking in a risky activity, you need experienced representation. The Houston serious injury lawyers with The Krist Law Firm, P.C. can evaluate your situation and help you understand your legal options. Call us today at (281) 283-8500.
When Are Liability Waivers Not Enforceable?
There are cases, however, where a court may decide to not enforce the liability release agreement, and allow you to proceed with a lawsuit. A Texas court may deem a liability waiver to be unenforceable if you and your Houston personal injury lawyer can prove either of the following:
- The waiver did not give you fair notice – meaning that you didn’t know that you signed away your rights to sue
- The waiver was unconscionable – meaning that it was too unfair for the court to enforce
Proving either condition is very difficult. You will need an experienced and dedicated legal team to muster the arguments necessary to sway the court in your favor.
If You Didn’t Have Fair Notice
With respect to the fair notice requirement, your lawyer may be able to argue either of the following:
- The waiver doesn’t meet the express negligence doctrine – The intent of the parties, which in this case is the absolution of all of the business’s negligence liability, must be specifically stated within the contract. The contract must clearly state in reasonably simple language who is being released from negligence liability, and for what activities.
- The waiver doesn’t satisfy the conspicuousness requirement – The release form must be able to alert a reasonable person to the fact that it is a waiver of liability. Relevant wording must be in large font, in bold, or contrasting colors to attract the reader’s attention. A liability waivers fine print and written in legalese may be unenforceable under the fair notice requirement.
If The Waiver is Unconscionable
To convince the court that the liability waiver is unconscionable, your lawyer needs to prove both of the following:
- The waiver is procedurally unconscionable – The process of signing the contract must be shocking to the conscience. Here, courts look for evidence that the person signing the waiver had no other reasonable choice, and was denied any opportunity to negotiate.
- The waiver is substantively unconscionable – The result of signing the contract must be so one-sided, oppressive, or unanticipated so as to unfairly punish the person signing it.
You May Still Sue if the Liability Waiver Was for a Child
If you are a parent who signed a liability release for your child, who subsequently got injured, you will not be able to recover your expenses in treating the child. But your child may be able to recover damages for their pain and suffering, and for any medical expenses that they might incur upon turning 18.
Alternatively, if a friend or a relative signed the release for your child, and the child got injured as a result of the business’s negligence, the waiver may be invalid. Under Texas law, only a parent or legal guardian can sign waive liability for a child.
Getting Help With a Personal Injury Claim
Personal injury law cases can be complicated, especially when they involve injuries occurring on the property of a business or as a result of risky activities. To maximize your chances of obtaining the compensation you deserve, you need a skilled Houston personal injury attorney by your side. At The Kirst Law Firm, P.C., we’ve achieved landmark recoveries for our clients. If you want us in your corner, call us today at (281) 283-8500 for a free consultation.