Liability Waivers

*****Disclaimer: This is not legal advice and is for educational purposes only. This does not create an attorney-client privilege.

Liability waivers, also known as liability releases, are meant to help protect businesses in the event of some sort of accident or incident, as their name suggests. These legal contracts are created between a business and a participant in some business-related or run activity. Often business will host, or sponsor activities or services that have some level of risk associated with them, and the liability waiver is primarily designed to educate the prospective participant of the potential risks prior.

Even though the form is intended to minimize liability for the business and reduce the number of negligence suits they receive, the reality is that these contracts are not airtight in their enforcement or protection. Liability waivers help to discourage lawsuits by informing the participants in clear terms of all risks and also can discourage many from even looking into a lawsuit if they believe that is no longer a legal option after signing. In actuality, you can still pursue a negligence claim against a business even after signing one of these forms, though it can be used to make a case against you for taking an informed risk, willingly. More specifically in cases of gross negligence or intentional harm, these liability waivers will not hold up in court.

The waivers can include a clause so that the participant agrees in writing not to sue your business. But even with this, you should strongly consider liability insurance, because these participants can still file an insurance claim. And also, your waiver needs to be very comprehensive if you hope to avoid a situation where you are sued for something not outlined and covered in it.

Though you can find many of these forms online, usually for low to moderate cost, you should cross reference them with specific requirements for your state and intended activity. The surest way to meet all requirements is to contract an attorney to draw one up for you. Most states to do allow exculpatory agreements, but the degree of leniency to strictness varies from state to state. The exceptions, states that do not permit any form of liability absolution agreements are Virginia, Montana and Louisiana.

In California for example, liability waivers are in fact legally enforceable. However the California legal code specifies that they only cover “ordinary negligence”. You may still be vulnerable to legal action for gross negligence, illegal acts, intentional torts or recklessness.

As a business, you are not obligated to allow someone to participate if they refuse to sign a liability waiver. It would be your prerogative to prohibit them joining at that point. You would just need to make it clear that is your reasoning for refusing service or access, if you want to avoid a suit for excluding them for another reason.

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