Under the Occupiers’ Liability Act, business owners have a legal responsibility when someone is injured on their property.

This ensures that individuals are properly compensated when they’re injured due to unsafe conditions or negligence. But what happens when the business offers a service that is, in and of itself, unsafe?

Many businesses offering these kinds of services make patrons sign liability waivers. The extent to which these waivers are legally enforceable isn’t a simple matter.

What is a Liability Waiver?

Some companies offer services that could be considered unsafe or even dangerous. When you go white water rafting, skiing, or to a trampoline park, there is a chance that you could be injured partaking in those activities. To avoid the liability that could arise from these potential injuries, these types of companies often have patrons sign a liability waiver.

The liability waiver is signed before parking in the particular activity offered. The intention of a liability waiver is to warn patrons of the dangers and potential for injury. They often sate that by signing the waiver, you give up your legal right to pursue a lawsuit should you get injured.

Are Liability Waivers Enforceable?

While businesses would like to have you believe that these waivers are legal documents, they’re not always enforceable. Every case is different, but below is a list of reasons the courts have found waivers to be unenforceable.

Non Est Factum

The waiver must be presented as a liability waiver in order for it to be valid. That means that individuals must be clear on the “nature and character” of the waiver before they sign it. An example of an invalid liability waiver would be if it was presented as a registration form.

Reasonable Steps to Inform of the Legal Nature

A business must take reasonable steps to inform the person signing that, in signing the waiver, they’re giving up any right to pursue a lawsuit should they be injured. That means that a business cannot simply hand a waiver to patrons and have them sign. The person must be informed that they’re giving up their legal right and that they will be bound by the terms.

Misrepresentation or Fraud

If an individual is misled or lied to about the nature of the waiver in order to obtain a signature, this may be misrepresentation or fraud. For this to apply, the business would have to be actively misleading or lying to patrons about the waiver.

Public Policy Grounds

These cases involve unfairly taking advantage of an individual. This would include situations where a business used or took advantage of economic or social pressure to get someone to take part in the service they offer. As a result of that pressure, they signed the waiver.

Capacity

If an individual lacked the capacity to sign the waiver, they may not be not bound to it. This may also include language barriers. If an individual couldn’t understand the terms of the waiver due to language, they’re likely not bound to its terms.

Negligence Outside of the Waiver

There may be a case where someone has a slip and fall inside of a facility after having signed a liability waiver. However, if negligence causes an injury and that negligence was outside of the scope of the waiver, the waiver is not enforceable for that particular injury.

Other

This covers situations where the information regarding legal liability was not made clear or buried in small print. It may also include situations where the individual signing was rushed through the process or pressured to sign for any reason.

Recent Decision Regarding Liability Waivers

A recent decision regarding liability waivers sheds some light on how the courts handle these types of cases. In this case, Mr. Rafik Zaky, the Plaintiff, visited Sky Zone, an indoor trampoline park. Zaky was seriously injured while on the trampoline when he attempted a back flip.

Zaky signed an electronic liability waiver before partaking in the trampolines. That waiver was titled “Assumption of Risks, Release of Liability, Waiver of Claims and Indemnity Agreement.” It included explicit warnings about the legal nature of the document as well as warning that these activities could cause serious injury. The waiver also employed capitalized letters to attempt to draw the reader’s attention.

Sky Zone argued that this waiver released them of liability and, as such, asked for a summary judgement and that the action to go to court be dismissed. The issue reviewed by the court was whether or not the waiver was a full enough defense so as to not require a trial. What the court examined in detail in order to answer this question was whether Sky Zone took reasonable steps to bring the terms of the waiver to Zaky’s attention.

The court took into consideration the fact that no evidence was presented by either Sky Zone or Zaky regarding who was present when Zaky signed the waiver. Zaky stated that he was simply pointed to the kiosk and explicitly told that he had to be quick or he would lose the time he booked on the trampolines with his friends.

Zaky walked to the electronic kiosk where the waiver was located, waited his turn, typed his personal information, scrolled through the lengthy and complex document, and (he believes) he pressed “Agree.” He stated that none of the terms in the document captured his attention, not even with the use of highlighting, bold, capitalization, or coloring.

This was his only interaction with the document and nothing further was communicated to him by the business or its employees. He was not explicitly told that he was giving up his rights by partaking in the trampolines.

The court ruled that Zaky did not knowingly give up his full legal rights and dismissed the motion to forego trial. The court stated that It was not clear whether Sky Zone took reasonable steps to bring the terms of the waiver to Zaky’s attention and, therefore, a trial was necessary to address this issue. The judge further stated that “mere fact that there was a waiver requirement cannot, in law, constitute reasonable steps to bring the terms of the waiver to the attention of the participant.”

Have You Been Injured After Signing a Liability Waiver?

Of course, businesses who offer services that may be considered risky or unsafe have it within their right to make patrons sign liability waivers. But, in order for those waivers to be enforceable, they must take reasonable steps to inform individuals of what the document contain and the fact they’re signing away their legal rights. If these steps were not taken, or the individuals didn’t have the capacity to sign it, that liability waiver may not hold any weight in court.

If you’ve been injured after signing a liability waiver, don’t let that stop you from pursuing legal action. Let’s discuss your case and find out whether that waiver would be enforceable in the eyes of the law. Contact us today.