Does the Signing of a Waiver Prevent Someone from Suing

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a mother calling about a school-aged child injured while participating in a school athletic program. Her primary question focused on a waiver she signed for the child to participate. She said the waiver contains language that waives all right to sue, and she wanted to know her options.

Liability waivers are frequently encountered in school situations. It might be a field trip or something a parent must sign for a child to participate in a sports program.

But waivers are also often used when a person participates in risky behaviors such as operating jet skis, renting scuba diving equipment, or skydiving and parasailing.

Often courts uphold these waivers. But they don’t do so in every situation.

Most states will not allow a party to limit their liability for gross negligence, reckless conduct, or willful and wanton conduct.

In other words, if a potentially negligent defendant conducts themselves in an egregious manner, courts won’t let them point to a waiver to escape being held liable.

The critical thing to look at in analyzing whether a waiver is enforceable will be the particular language in the document.

Does the document explain the nature of the dangers encompassed by the waiver?

Does the waiver deal with the potential injury of a child?

Is the waiver against public policy?

An example of a public policy might be where a law requires an excursion boat operator to sideline operations when bad weather is forecast.

Suppose the boat operator ignores the forecast of a bad storm and takes passengers out only to capsize. In that case, a court will not look kindly on the excursion operator who ignores the law when injuries are suffered.

Even if a passenger signs a waiver describing a potential injury from a weather event, if the boat operator fails to follow the law compelling the boats to stay docked during a storm, a court might refuse to enforce a waiver where there is misconduct in violation of law.

A waiver’s enforceability will always be a fact-sensitive issue. We encourage promptly consulting an attorney if a severe injury is involved, regardless of a signed waiver.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”