We see waiver forms all the time: from school sports to the ski slopes to the hotel pool. And normally we sign them without giving them much thought.
But what if it’s a government entity asking you to sign a liability waiver? Can they make the waiver a prerequisite to participation in public services? And if you sign it, have you waived any and all future injury claims?
The General Rule
Unfortunately, government entities, including states, counties, and cities can make signed waivers mandatory, even for participation in taxpayer-funded programs. While governments don’t enjoy the same level of sovereign immunity that they used to (meaning you can, in fact, sue city hall), they can still require liability waivers in some instances.
Liability waivers are also generally upheld. Most waivers are designed to immunize companies and government entities from liability for their employees’ negligence, known as vicarious liability. And, for the most part, courts will enforce liability waivers, even if the entity or its employees acted negligently.
There are some cases, however, where courts will rule that a liability waiver is invalid. If a waiver is unconscionable, meaning it is unreasonably unfair or contrary to public policy, it will be unenforceable. The Oregon Supreme Court recently found a ski resort’s liability waiver unconscionable, and allowed an injured snowboarder to sue the resort.
And while some liability waivers may cover a government entity’s negligence, they won’t protect the entity from suits regarding reckless or intentional acts. Forms or contracts that ask a party to waive claims for gross negligence or intentional torts can be thrown out for being overbroad.
So while you may waive your right to sue over an honest accident, a court will generally not allow a government entity to avoid liability for its own recklessness or intentional harm. Just because you signed a liability waiver doesn’t necessarily mean you’ve forfeited any injury claim, and an experienced injury attorney can tell you whether you still have a claim.
Originally posted to The FindLaw Blog by By Christopher Coble on June 17, 2015.