WHITEBOARD WEDNESDAY (June 21, 2017): Everyone has “signed their life away” before they were allowed to join a gym, take a scuba-diving course, rent a scooter, or engage in other similar activities, but will this liability waiver really prevent you from suing the company if you are injured due to their negligence? In this week’s Whiteboard Wednesday, Matt tackles the enforceability of liability waivers (CA)…

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Video Transcription

Hi, Matt Quinlan here. Welcome to this week’s edition of #WhiteboardWednesday , where we tackle real-life issues that are our clients face and answer questions that we get from people that call our officeThis week we’re gonna be talking about liability waivers. You know, the form you sign before you join a gym, before you take a scuba diving course, before you rent a bicycle, those types of things. They’re the contracts that a company will make you sign that absolves them from any responsibility for their negligence and puts you on notice of all the risks you are taking, you basically agree not to sue them.

So today we’re gonna be talking about the enforceability of these. Are these enforceable in California? And the answer is maybe. It’s actually closer to probably, but it’s maybe for all the reasons I’m gonna describe. So there are four ways that we go about trying to invalidate a liability waiver that somebody signs, because obviously if we can invalidate it then you have the opportunity to bring an insurance claim and sue the company whose negligence caused you to become injured.

Ambiguous or Vague Contract Language Can Invalidate Waiver

So the first way that we go about trying to do it is by trying to establish that the liability waiver is ambiguous or vague. So the party that drafts the liability waiver is held to the standard making it clear, and if they fail in that regard then the whole liability waiver itself can be invalidated. If it’s ambiguous, if there is an alternative kind of meaning, semantic reasoning, that makes sense based on the content, based on the agreement, based on the activity, then that can invalidate a liability waiver, and if it’s vague. Who does it cover? What exactly does it cover? It needs to be very specific. And so if it’s not, it can be invalidated for that reason, it can’t just be some, you know, throw it all up on the wall and hope it all sticks, because it doesn’t work like that with the courts.

So who’s covered? Which defendants? Are there multiple companies involved here with the activity? If so, maybe only some of them are covered, which ones are outlined in the agreement, you gotta look for it. And then, what exactly is the activity that somebody is being absolved from? The size and the location of the actual language of the liability waiver is also really important. You cannot have tiny little writings stuffed on page 7 of a 10-page document that kind of gets overlooked and you barely even notice. That’s not gonna fly. It needs to be presented very obviously. The font needs to be large, of course, a 10-point font. It needs to be presented in a way that someone can see it, it’s not being hidden in any kind of way. And if it is then you can invalidate the liability waiver.

Fraud, Deceit or Duress To Induce Agreement

That leads nicely into the next way to go ahead and invalidate one of these things, and is through fraud, deceit or duress. So a person can’t mislead you into signing one of these things. They cannot pressure, you they cannot force you to sign it with in a sort of urgency or say, you know, “You’re gonna mess the tour if you don’t go ahead and hurry up and sign this.” That’s duress.
They can’t make mislead you about what it is that you’re signing. For example, a translator. Let’s say someone speak Spanish, the form is in English, it’s clear that they’re having trouble reading it and understanding it, and if a person with the company tries to kind of convey the meaning of what’s in that liability waiver to somebody that doesn’t speak the language, well, then it’s not going to be enforceable.

So this is the type of thing that can be used to invalidate one. And then of course the pressure. “Hurry up and sign it, oh, it’s no big deal.” The lies, “No, you know, it’s not really effective, it’s just something my boss makes us sign, don’t worry about it.” Stuff like that will get the waiver invalidated and allow you to be able to bring a claim.

So those are two pretty good ways, they’re somewhat uncommon ways. I’ll note that the ambiguity and the vagueness requirement is a question of law. And what it means is it’s for the judge or the court to determine if, in fact, the language is ambiguous or vague. That’s important because the defendant, if you actually sue them, can make a motion in front of the court to get your case thrown out, and you don’t have an opportunity to present this to a jury. So this is different than one of the other options I’m gonna be describing later, and in my opinion it’s the least desirable and a less effective one to use, and I’ll get into that here in a little bit.

Accident Was Outside Scope of Waiver

Outside the scope. So the thing that is being done where you’re looking to absolve someone of liability, this specific thing, that’s important. What are the risks that are being contemplated here? So if I’m joining a gym, what is the purpose of this waiver? I mean, it’s really critical. If I’m joining a gym and I’m gonna be using the equipment and I’m engaging in some class or something like that, and I agree to sign some liability waiver to participate. And then I do the class, everything’s fine. After the fact I’m in the locker room and I’m showering or I’m in the sun or something like that and I become injured. Okay, that probably won’t be covered because the risk that I contemplated was I’m gonna engage in this class, I’m gonna use your equipment, I understand potentially it’s dangerous and I understand things can happen and I’m willing to assume all that risk, but I never contemplated anything about what’s going on in the locker room after the fact. So this is the type of thing that…it does come up a lot. People that are injured may think that they’ve signed a liability waiver that’s some blanket waiver, but it’s not. It’s only covered specific things that are contemplated by the party. So look to see if the way that a person was injured was contemplated in the release and by the parties when they agreed to it.

Gross Negligence or Intent Will Invalidate Waiver

And lastly, gross negligence or intentional acts, those will invalidate any liability release, no doubt about it. Simple negligence and gross negligence are different things. Simple negligence is kind of the reasonable standard, what would a reasonable person do in these circumstances? What would be expected of them? That’s just stock negligence. If you violate that standard you’re simply negligent. But gross negligence requires you to have some extreme departure from that negligence standard. Okay, it’s much more egregious, more obvious, it falls short of intent but it is obviously something that has gone well beyond simple negligence. And it will in fact invalidate a liability release, if you can establish that it exists.

Now, this right here is a question of law, okay, so that means…sorry, this here is a question of fact, which means that a jury has an opportunity to decide if in fact it was gross negligence or simple negligence. Now, that’s important because if you file a lawsuit of course the defendant’s gonna argue, you know, “We weren’t grossly negligent.” You’re gonna have to assert that they were. And ultimately a plaintiff will have an opportunity to present that particular issue to a jury, which means you’re gonna have your day in court, you’re gonna have a trial, and settlements happen before trials usually. So this right here will allow you to keep your case alive for a substantial amount of time and probably give you an opportunity to settle your case. So this here is a very effective way of trying to defeat these liability waivers. You allege gross negligence with the understanding that, you know, it’s gonna be debated and argued. But because you have an opportunity to present this particular issue to a jury as opposed to a judge, like the ambiguous vague standard, you’ll have an opportunity to settle your case here most likely before trial. So that’s obviously very important if your goal is to get money.

And then lastly the insurance coverage issue here, insurance doesn’t cover people from their intentional acts, but it does cover negligence. So if you assert gross negligence and you establish it, insurance companies will in fact pay you. That’s important because you need it in pocket to recover from as an injured plaintiff. And they will not if it’s intentional, so you wanna avoid the intentional claim if you can. If you can establish the gross negligence without having to establish the intent, because then the insurance company’s still in play, and that’s really important kind of practically for achieving your goals of being compensated for your injuries.

So these are the issues that we see with liability waivers. As a personal injury lawyer I see these a lot. People oftentimes will assume that they signed one and therefore they cannot sue, but that’s not true. I’m happy to answer any questions about any of these particular issues. I’m also happy to take a look at any liability waiver that you signed that you think may prevent you from bringing a personal injury claim against a negligent company. I appreciate you watching this week’s edition of Whiteboard Wednesday. I hope you learned something and I’ll see you again next week.

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