Have you ever signed a Release or Waiver of Liability form before doing a risky activity like rafting, skydiving, or zip-lining? Or before your child could play sports?
Businesses try to protect themselves from lawsuits with a form that says you agree to “release, indemnify and hold harmless” the business if you are injured for any reason. Too often, they use this Waiver of Liability form as a substitute for insurance.
If you are injured after signing one of these forms, have you really forfeited your right to seek damages?
It depends.
Different States, Different Rules
We usually give up the right to sue for damages when we sign a Waiver of Liability. However, the interpretation and legality of such waivers varies by state. In some states (like Virginia), they are almost unenforceable. In other states, they are valid in most cases.
In Missouri, a Waiver of Liability can be found invalid if it:
- Excuses conduct that is grossly negligent or against the public interest
- Excuses negligent conduct, unless specific instances are clearly spelled out
- Has language that is unclear, confusing, or above the understanding of the signer
- Is not easily recognizable or “hidden” within a lengthy document
- Is “unconscionable” (unfair, unreasonable, dishonest)
Negligence vs. Gross Negligence
Missouri law defines negligence as the failure of one to do that which an ordinarily careful person would do under the same or similar circumstances. This can include mistakes, broken equipment, or other unsafe conditions.
Gross negligence is the willful and reckless disregard for the safety of others. With gross negligence, the responsible party is aware of a hazard but does nothing to lower the risk.
In many states, a Waiver of Liability will protect a business in cases of ordinary negligence or accidents. But it will not shield the business in instances of gross negligence.
For example, let’s assume you sign a Waiver of Liability when renting an apartment. That spring, you step on a rotten board on the staircase and fall through, injuring your leg. You had brought the rotten board to the attention of the management several times over the course of the winter, but it had yet to be repaired. You think the apartment owner should be responsible for your medical bills. They say the signed Waiver of Liability protects them.
If the ice had only been there for a few hours, they might be negligent but the waiver would almost certainly apply. But, if the sidewalk had been icy for a week, you would have a strong argument for gross negligence and may be able to sue for damages.
You Should Talk to An Attorney
Even if you have signed a waiver, if you or a loved one has been injured, come talk with one of the attorneys at JVM to see what your rights are. It is free to have us look over the waiver and evaluate your case.
If you’ve been injured, we can help you examine your options. With 140+ years of combined experience, Johnson, Vorhees & Martucci is one of the region’s leading personal injury law firms. if you need to talk to an attorney, call us at (417) 313-1130, (417) 319-2113, or (833) 600-0125 for a no-cost, no-obligation consultation.
