These days it seems like everyone is asking for waivers, from hospitals, doctors and schools, to daycare centers, fitness clubs and charity event organizers.
Want to go skiing this winter, sign a waiver. Want to run a 5K, sign a waiver. Want to sled down the neighbor's yard, sign a waiver.
Waivers can be a good thing if they provide you with fair and up-front warnings of possible harms and injuries, i.e, this medicine is potentially harmful to expecting mothers, or this activity is not for anyone with existing heart conditions.
However, waivers can be a bad thing if they are used to release others from their own negligence, or if they are used to make you responsible for any injuries suffered by your child as a result of the negligence of others ("hold harmless" and "indemnification" agreements).
For instance, you may know that snow skiing carries with it the risk of falling and injuring yourself, and you may be willing to assume the risk of skiing anyway. However, you may not know that most snow skiing waivers also purport to release the resort for any injuries you may suffer as a result of a negligently maintained ski lift or snow plow.
Have you always signed waivers as a matter of course because you assumed that waivers aren't enforceable? Then you need to revise how you view waiver forms. A well drafted waiver may in fact prevent you from pursuing your claims, even for injuries caused solely by third parties remotely involved in an event. In Missouri, signed waiver forms are routinely upheld by our courts denying your right to any recovery for our harms and losses, even when you are injured through no fault of your own.
So what should you do? First, read the waiver and understand what it says. All waivers are not the same. Is the waiver a "participation" release, or is the waiver a "liability" release? If it is a "liability" release, consider who you are releasing and the claims you are releasing them from. Is the waiver asking you to hold harmless and indemnify third parties for any injuries suffered by your child, even for the negligent acts of the third parties?
Also, know the difference between the two types of negligence claims, those for ordinary negligence and those for gross negligence. Ordinary negligence is the failure to act as a "reasonably prudent person" would act under the circumstances. Gross negligence occurs when there is more than just ordinary negligence, i.e. recklessness or intentional indifference.
Once you have read and understood the waiver, consider whether you really need to sign it (sometimes you are given a release just to see if you will sign without objections or deletions), and consider whether you want to sign it. Maybe the event or activity just isn't worth the risk.
What do you do if you have signed a waiver and been injured, or your child or other family member participated in an event or activity after signing a release and have been injured or killed? Don't assume you have lost all your claims! Don't assume you have lost all your rights to hold negligent parties responsible for their negligent acts. Contact a lawyer immediately for review and evaluation of your claims.
A waiver form should never release others from gross negligence or intentional acts. A waiver form signed by or for a minor may not be enforceable against the minor. The particular waiver form may be held to be against state law or public policy, or held to be vague and ambiguous, or the circumstances of signing the waiver may be held to have been so onerous or difficult that it may not be enforced.
At Holder Susan Slusher, LLC, our personal injury lawyers give free initial consultations as a way for you to get your questions answered. At Holder Susan Slusher, LLC, our personal injury lawyers have the experience and knowledge to evaluate your case.