Thu 19th Sep | 2013

What is in a Waiver of Liability, And What Does All That Fine Print Really Mean?

Legal Insight BY

Whether you’re signing your child up to play a sport in your local community, zip lining in St. Croix, or parasailing on a beach near your home, it seems like most businesses offering an opportunity for a commercial recreational service are making participants sign a release, or waiver of liability.

These kinds of releases, sometimes called “Exculpatory Clauses,” or “Pre-injury Releases,” essentially require a person to sign away their rights before participating in said activity, with the hopes of avoiding legal responsibility if that person gets injured, even if it’s due to the proprietor’s own negligence.

So the question I’m often asked is, are these releases enforceable?

While these releases are disfavored in the law, they are enforceable when the document “clearly and unequivocally” reveals the proprietor’s intention to be relieved from liability. Still, the wording must be so clear and so understandable, that an ordinary person would understand the rights he or she is contracting away.

Before signing such a document and hopping on that zip line, one must always carefully examine the fine print. Look for language which says things like the proprietor will not be liable for any injuries or damages, or “be subject to any claim, demand, injury or damages, whatsoever, including without limitation, those damages from acts of passive or active negligence on the part of the entity, its officers, employees, or agents.” When the clause states that the signing party expressly forever releases and discharges the entity from all such claims, demands, injuries, damages, actions, or causes of action, and the signing party acknowledges having carefully read and fully understanding it is a waiver and release of liability, Florida courts will uphold the waiver of liability.

There is an exception, however, regarding waiving the rights of children. Florida law holds that proprietors of commercial activities cannot enforce “pre-injury” waivers against a minor (or a minor’s estate) in a personal injury action, which arises from injuries resulting from participation in that commercial activity.

Still, while a parent may not waive away a child’s right when participating in a commercial activity like snorkeling, jet skiing or other such activities, that is not the case when it comes to a child’s participation in activities run by non-profit entities such as schools, churches, synagogues, and other such organizations. The courts draw a distinction between “for-profit” businesses which may insure themselves against risk, and “not-for-profit” entities which are less able to do so.

The bottom line is this: many commercial enterprises running travel excursions, thrill-seeking activities, and other recreational endeavors with a potential for injury, are doing everything possible to protect themselves from a lawsuit. Unfortunately, once we have packed ourselves and our families up and traveled to engage in one of these activities or outings, the last thing we want to think about is the “fine print” in the paperwork they make us sign as we suit up for the excursion.

Still, while the chances of injury may be slim, if something should happen, bringing a lawsuit against the negligent party (except on behalf of minor children) is often going to be an uphill battle. You can always try to “cross out” the “waiver” provisions and put your initials by the cross-outs in an effort to invalidate them.

However, the choice often comes down to refusing to sign that waiver of liability, and not participating in the activity, or doing so at your own risk.