Wednesday, July 17, 2013


So, you’re standing on the ledge, looking down into the abyss before you, and it occurs to you that the guy who just strapped you into your bungie-jumping harness may have made you sign a waiver of liability for a reason. Or maybe you’re a parent and you’re signing your precious child, the one you changed your whole life around for, the most important thing in your world, up for soccer camp. But, first you have to sign, first you have to accept that if anything terrible happens it’s nobody’s fault but your own because you chose to participate.

Most people just sign. You agree to give up your rights because you want the service that the business provides and, really, nothing bad could happen to you. Plus, you heard that they’re worthless anyway. You can still sue. Right?

Well, maybe. Some releases do limit your right to sue by forcing you to give up the right to a jury trial (which is your 7th Amendment Constitutional right). But that is mostly beside the point, because the right to sue doesn’t equal the right to win and, frankly, you won’t be suing if there is very little hope of winning because personal injury lawyers aren’t stupid.

In California (and states do differ), releases and waivers of liability are mostly upheld, even in situations where the person you are suing was clearly negligent. They are considered contracts that, if properly drafted and executed, are recognized as valid agreements that limit your rights. As a consumer, you are in a difficult position when faced with these forms immediately before participating in an activity. You usually do not have a reasonable opportunity to thoroughly read and evaluate the language and the employee who you are interacting with usually does not have the authority to modify any of the terms. Most likely your option is to sign or leave.

But what if you get hurt? You are not automatically out of luck. You should still take your case to a lawyer to have it evaluated. Most personal injury lawyers will evaluate a case for free and they might find a way to challenge the waiver. Here are a few ideas:

1) The California Supreme Court has held that releases are valid only to protect defendants from being sued for negligence. They are invalid if you can prove that the other party’s conduct was more than negligent, e.g., gross negligence or recklessness.

2) If the contract is what the law calls “unconscionable” as in no one should ever have been made to agree to this it may struck down.

3) If the business’s advertisements, website, brochures or other marketing contained misrepresentations or intentionally false statements that misled you about the risks you were taking it may be considered fraudulent inducement that would override the release or waiver of liability.

4) The release or waiver must be clear, concise, easy to read, and fairly specific to the activity you participated in. It must also specifically identify all the parties who are being released or waived from liability. For example, if the font is too small or blurry or if they just printed something off the internet that doesn’t really relate to what you did.

5) A valid release does not prevent you from pursing a case against the designer, manufacturer or distributor of a defective product so if you got hurt white water rafting when your boat sunk you may not be able to sue the company that took you down the river but it is still worth looking into whether or not the boat was defective.

By the way, even though you’re reading this to get some free legal tips and probably don’t care a thing about my politics, I am going to say this anyway: attorneys who represent people against corporations (personal injury or product liability) are often mercenaries for legitimately harmed people who have no other way to pay their health care bills. I write liability waivers for corporations and I don’t do personal injury law anymore, but I also help low income people with their Medi-Cal issues so I have a lot of sympathy for people who simply don’t have enough money to pay for medical bills that someone else caused. If we don’t want injured people to be able to sue corporations anymore we need to create a society where an injured person is otherwise cared for (true income replacement through decent disability benefits, affordable health care, stronger laws protecting disabled people). When I see comments about how ridiculous it was for someone to sue McDonalds over hot coffee (that caused 3rd degree burns, requiring skin grafts, around her crotch, mind you) I get angry because if it weren’t for tort law we would be left at the mercy of our government’s weak consumer protection laws or corporations that often have very little other incentive to make products safe. The reason why I like drafting liability waivers, and contracts in general, is because they empower the business and the consumer to get on the same page regarding liability before the activity commences.

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