Injured After Signing a Waiver: Can You Still Sue?

A waiver, or release, or exculpatory agreement, is a contract in which the participant agrees not to hold the business responsible for injuries from the activity, including injuries caused by the business's own negligence. Gyms, trampoline parks, ski areas, climbing walls, races, rental operators, tour companies, sports leagues and children's activities all require them. The law treats them as contracts and enforces them when they meet the requirements, which vary by state, and refuses to enforce them when they do not.

Enforced, a waiver bars a claim that the business was negligent: that the equipment was worn, the supervision inattentive, the instruction inadequate, the floor wet. Not enforced, the claim proceeds as any premises or negligence claim. The categories a waiver cannot reach in any state are gross negligence, recklessness and intentional conduct, and most waiver litigation is about whether the defendant's conduct falls into one of them.

A waiver also reaches only what it says. A waiver of the risks inherent in the activity, the fall from a climbing wall, the collision on a ski slope, does not waive the business's negligence unless it says so clearly, and many do not. A waiver naming one company does not protect another, such as a manufacturer, a contractor or an affiliated business. And a waiver covers the activity it describes, not an injury in the parking lot or the locker room.

Gross negligence is the main ground. Ordinary negligence is a failure to take reasonable care; gross negligence is a failure so extreme that it shows indifference to safety, and recklessness is conscious disregard of a known risk. A trampoline park that ignored a known broken spring, a gym that left a cable machine with a frayed cable in service after complaints, a tour operator that took clients out in a storm warning, a ski area that failed to mark a known hazard, are the fact patterns in which courts find the conduct beyond what a waiver can release. The evidence is the business's own records, prior complaints and incident reports, and inspection history.

Minors are the second. A waiver signed by a minor is void, and in most states a waiver signed by a parent on the minor's behalf does not bind the minor's own claim, on the reasoning that a parent cannot release a child's rights; a minority of states enforce parental waivers for recreational activities by statute or case law, and the list is changing. The parent's own claim for medical expenses may be barred by the parent's signature even where the child's is not.

Form and clarity are the third. The waiver must be conspicuous, understandable and specific; it must use language a reasonable person would understand to release the business's own negligence, which in some states means the word 'negligence' must appear; it must have been presented so that the signer had a real opportunity to read it; and ambiguities are construed against the business that drafted it. Online check-boxes and app-based waivers are enforced when the process is clear and the person had the opportunity to review the terms, and challenged when it was not.

Suppose your twelve-year-old was injured at a trampoline park when she landed in a gap between a trampoline and a padded frame where the padding had been removed for repair and not replaced, fracturing her tibia. You had signed the park's waiver on its website before the visit, as every parent does. Medical bills were $24,000.

The park's insurer denied the claim, citing the waiver. An attorney obtained the park's maintenance log, which showed the padding removed four days earlier with a note to reorder, and incident reports showing two prior complaints about the gap in those four days. In your state, a parent's waiver did not bind a minor's own claim, so your daughter's claim was not barred regardless; and the park's operation of the court with a known, unrepaired gap after complaints was argued as gross negligence, which no waiver reaches, for your own claim for the medical expenses.

The claim was presented on both grounds, and the insurer, facing a state rule against parental waivers and a gross negligence record, settled for the medical expenses and the child's injury, with court approval of the minor's portion. All figures are hypothetical; the pattern of a waiver denial that does not survive the business's own maintenance records is common.

The waiver is a document to be examined, not a verdict, and the evidence that defeats it is in the business's own records.

• Get a copy of the waiver you signed, including the online version and the date and manner of signing; the business must produce it.
• Report the injury to the business before leaving and get the incident report number; ask what the business's own records say about the equipment or condition.
• Photograph the equipment, the condition and the surroundings, and get witness names, including employees who were supervising.
• Ask other patrons and check online reviews for prior complaints about the same equipment or condition; prior notice is the gross negligence evidence.
• Get medical care the same day.
• Preserve any equipment involved if a product failure is suspected; a manufacturer is not protected by the business's waiver.
• Have an attorney review the waiver against the state's rules on form, scope, minors and gross negligence before accepting a denial.

A few states refuse to enforce pre-injury waivers of negligence as against public policy: Virginia, Louisiana and Montana are commonly cited, and others restrict them for particular activities. Most states enforce clear waivers for voluntary recreational activities against ordinary negligence, with varying strictness on form: some require the word 'negligence' or equivalent, some require the waiver to be conspicuous, and all construe ambiguity against the drafter. Every state refuses to enforce waivers against gross negligence, recklessness and intentional conduct, though the definitions of those terms vary.

Parental waivers for minors are unenforceable against the child's claim in most states; a minority, including Colorado by statute and a few others by case law, enforce them for recreational activities. Some states' statutes for specific activities, ski areas, equine activities, fitness centers, set their own rules on what risks a participant assumes and what the operator must do, and those statutes govern over a general waiver. Waivers of statutory safety requirements, such as building and fire codes, are generally void.

Assumption of risk, the related doctrine that a participant in a dangerous activity accepts its inherent risks, applies with or without a waiver and bars claims for injuries from risks inherent in the sport, a collision in a hockey game, a fall while skiing, but not for risks the operator created or increased. Deadlines are the state's injury statute, one year in Tennessee and Kentucky, two in Texas, California, Florida and Georgia, three in New York and North Carolina; waivers sometimes include shortened contractual deadlines, which are enforced in some states.

Gyms and fitness centers: equipment maintenance, trainer supervision and instruction, and premises conditions are the claims, and several states have fitness center statutes. Trampoline parks: gaps, padding, overcrowding, inadequate supervision and the operator's own rules violated are the claims, and the industry's injury record has drawn regulation in some states. Ski areas: most states have ski safety statutes defining inherent risks and operator duties for marking hazards and maintaining lifts, and those statutes govern.

Races, obstacle courses and organized sports: course design, hazard marking, medical support and weather decisions are the claims against organizers; collisions with other participants are usually inherent risks. Rental operators, scooters, bikes, boats, ATVs: maintenance and instruction are the claims, and the waiver's arbitration clause is often the more significant term. Children's activities, camps and youth sports: parental waivers are the issue, and in most states they do not bind the child.

Medical and essential services: waivers of negligence by hospitals, doctors, landlords, employers and common carriers are void as against public policy in nearly every state; a waiver signed at a medical facility does not bar a malpractice claim.

A waiver bars a claim only when the state enforces it, the form and scope are adequate, the signer could bind the person injured, and the conduct was ordinary negligence rather than gross negligence or recklessness, and each of those is a question an attorney answers from the document and the business's records. The questions to answer early are what the waiver says and how it was signed, who was injured, and what the business knew about the condition that caused the injury. Most personal injury attorneys work on contingency and review waivers as part of evaluating a claim.

Ask Legal Matters is a free claim-review request service, not a law firm. Requests may be shared with independent attorneys and legal services partners who handle inquiries in your state, and an attorney must evaluate the facts before anyone can say what the claim is worth. If you or your child were injured at a business that says a waiver ends the matter, you can request a free claim review.

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