What you need to know about waivers of liability.
“You assume all risks, even if arising from our negligence."
You may have seen a statement like this when taking part in an activity. It is an attempt to limit legal responsibility. It is often called a waiver of liability or a release. Such statements are not always enforceable, even if they are in a contract or on a clearly visible sign.
Here are five things to know about statements limiting liability, aka waivers.
1. A service provider must take reasonable care of your safety
When you contract with a provider of services, the provider must take reasonable care of your safety. This is called an implied warranty. A warranty is a promise.
The provider also has a duty of care to be a reasonably careful provider. This means they have to use “reasonable care” when dealing with you. “Reasonable” means what a reasonable person would do in similar circumstances.
Some service providers try to limit these legal responsibilities. They use a waiver of liability to protect themselves from responsibility for any injuries you suffer. The waiver often tries to protect the provider even when their negligence (that is, their failure to take reasonable care) causes the injury.
For example, a provider might have you sign a form that says:
"I agree to waive any claims that I may have against the service provider from any and all liability for any loss, damage, expense or injury, including death, that I may suffer as a result of my participation in the activities, due to any cause whatsoever, including negligence on the service provider’s part."
2. With a waiver of liability, a service provider asks you to give up a right
With a waiver of liability, a service provider asks you to waive—or give up—a right you would otherwise have. By signing the waiver or even just taking part in the activity, you agree to give up your legal right to sue them if you suffer harm during the activity—even if the harm results from their failure to take reasonable care.
Such a waiver of liability may be found in a contract, on a ticket, or on a sign at the site of an activity.
Such waivers are often required in order to take part in an activity. You find these waivers at ski resorts, amusement parks, rock-climbing venues, and extreme sports activities. You even see them used with ordinary organized sports such as softball or soccer leagues.
3. Waivers of liability are not always enforceable
Waivers of liability in sports and recreational activities are designed to protect the organizers from responsibility when their negligence causes an injury.
Such waivers are not always enforceable. For a waiver to be valid:
- the provider must take reasonable steps to bring the waiver to your attention before the contract is made,
- the provider must “bring home” your understanding of the waiver, and
- the waiver must be clearly stated.
4. Three factors influence whether a waiver of liability is valid
For a waiver of liability to be valid, three factors are influential.
The provider must take steps to bring the waiver to your attention
For a service provider to rely on a waiver of liability, it must take reasonable steps to bring the waiver to your attention before the contract is made.
For example, a ski resort cannot rely on a waiver posted on a sign at the top of the ski hill. You won't even see the waiver until after you purchase your lift ticket. However, if the waiver is on the ticket and brought to your attention when you buy your ticket, the ski resort may be able to rely on it.
The provider must "bring home" your understanding of the waiver
It is not enough for the waiver of liability to be in a standard form contract that you sign. The service provider must draw the waiver to your attention or explain its legal effect to you. Whether the waiver is in a contract, on a poster on the wall, or on the back of a ticket, the service provider must take steps to "bring home" your understanding of the waiver before they can rely on it.
They can bring the waiver to your attention by (for example):
- having you initial the waiver clause in a contract,
- placing the waiver clause in large bold print, or
- explaining the legal effect of the waiver to you.
The waiver must be clearly stated
A waiver of liability that is clear and easy to read is more likely to be enforceable. A waiver is less likely to be valid if it:
- uses a lot of legal terminology,
- has long sentences, and
- contains repetitive language.
5. It doesn’t matter whether you have read the waiver
Under the law, when you sign an agreement, you are bound by it whether or not you have read it. With a waiver of liability, it doesn’t matter if you didn’t read it or didn’t know its contents. So long as you sign the waiver, you can be bound by it if the waiver is valid.