When Are Liability Waivers Effective?
LEGAL REQUIREMENTS FOR AN ENFORCEABLE LIABILITY WAIVER OR RELEASE
Contractual releases of liability are contracts (as the name explains), and are therefore subject to the same legal defenses and enforceability issues as other contracts. Specifically, an enforceable waiver requires some “consideration” (a legal term for “value received”) and cannot be entered into through fraud or duress.
Effective releases must also comply with three rules:
1 – The waiver must be reasonably related to the activity or other purposes for which the plaintiff signed the release.
2 – The release must be clear and unambiguous.
3 – The release cannot be, in form or content, contrary to public policy.
Reasonable Relationship of Waiver to Activities
A valid waiver must reasonably relate to the activities being conducted (or observed) and generally governs the types of risk, negligence, and/or injury likely to occur in the presence or in the course of those activities. Risks unrelated to and unforeseeable with relationship to the activity at hand–for example a gunshot wound at a baseball game–may not be covered. However, the release does not have to name every possible risk or injury in order to encompass all reasonably related risks, and may cover risks beyond those specifically named in the waiver form.
Ambiguities in Waivers Are Construed Against the Drafting Party
Contract law often provides that ambiguities in the contract are interpreted against the party who drafted the form. The same is true of liability waivers and releases. Since the form is normally prepared and provided by or on behalf of the party who otherwise becomes the defendant, property owners, instructors, and others who use releases and waivers should take the time to have a proper release drafted by an experienced attorney. Don’t simply pull a waiver off the Internet–it may not protect you properly and might not even be valid in your state.
Releases Cannot Contradict Public Policy
Waivers will not protect a defendant from liability for actions which contravene public policy, or in situations where the existence of the release violates public policy. For example: a waiver signed before a date generally won’t protect an individual against a claim of rape or assault.
PARENTS CAN SIGN RELEASES ON A MINOR’S BEHALF
Minors lack the legal capacity to sign contracts, and thus a minor cannot legally sign a release on his or her own account. A minor’s signature on a release can be “disaffirmed” by the minor at any time before he or she reaches the age of majority (and for a reasonable period thereafter)–so property owners, coaches, and others should not rely upon releases signed by minors without additional parental signatures.
A parent or legal guardian does have the power to sign a binding release on behalf of his or her minor child. Therefore, releases for children’s activities should always be signed by the child’s custodial parent and/or legal guardian.
DISCLAIMER: This article is intended for informational purposes only, does not constitute legal advice to any person or entity, and does not create an attorney-client relationship with any person or entity. Negligence law and defenses are a complex legal topic, and no single article can provide complete or comprehensive coverage or information about this or any other legal topic or issue. Your personal liability may differ, based on your individual facts and circumstances. If you believe you have a legal claim or issue, or wish to know more about your individual rights, consult an experienced attorney without delay.