Liability Waivers-Are They Valid?
So you want to take up Latin dancing? Picture it: you’re standing at the entrance to the studio in your new $250 Flamenco skirt, black lace leotard, and strappy open-toed shoes. Suddenly, you’re stopped by a woman armed with a 25-page waiver/release of all claims.
“Nothing more than a formality,” she explains, so you forgo reading and simply sign. Predictably, just as you strike a pose, you slip on a wet spot, collapsing on top of another aspiring dancer with your broken ankle. Will that silly little “formality” bar you from making a claim?
A waiver or release of claims, also know as an exculpatory agreement, is a legal contract signed by a party-participant in exchange for participation in an activity. The contract generally relieves the service provider from liability by limiting the participant’s right to sue.
Illinois courts have held that such contracts are valid and enforceable and don’t violate public policy. The waiver is a written acknowledgement of the participant’s “assumption of risk.” For the agreement to be valid and enforceable, the waiver must be clear, explicit, reference the type of activity involved, and disclose the circumstances or situations encompassed by the contract. This doesn’t mean every conceivable danger must be spelled out for the waiver to be valid.
Critical to the construction of any waiver/release is the foreseeability of the possible dangers or risks ordinarily associated with the particular activity. The participant must have notice of the range of dangers so he or she can exercise caution in light of the dangers. Whether a risk is the type associated with an activity may be an issue for a jury to decide. However, courts have concluded that certain risks are foreseeable as a matter of law. In Maness v Santa Fe Park Enterprises, Inc., the participant who signed an exculpatory agreement died from a heart attack, allegedly due to delayed medical treatment. While the waiver/release didn’t specifically contemplate the precise circumstances, the court held the agreement was valid. The court reasoned that the need for medical attention is a risk ordinarily accompanied by the dangerous sport of auto racing.
Absent fraud or willful and wanton conduct, exculpatory contracts generally will be upheld. Exceptions to this rule include waivers signed by, or on behalf of, minors. Waivers signed by minors aren’t valid, nor can parents limit or waive their child’s right to sue by signing a release on their behalf. However, a parent can be barred from bringing their own action for the death or injury of their child.
The most prudent approach to any activity requiring execution of a waiver/release is to become familiar with the risks associated with the activity. Obtain a copy of the release in advance of the commencement of the activity, and read it carefully. Ask questions if you’re unclear about any of the language. If you’re told something verbally, make a note on the margin of the release, date, and initial it. Ask the provider’s representative to do the same. If the provider refuses or won’t allow you to make changes, you need to decide if you’re willing to take the risk of possibly compromising your rights by signing the agreement. tpw
“Nothing more than a formality,” she explains, so you forgo reading and simply sign. Predictably, just as you strike a pose, you slip on a wet spot, collapsing on top of another aspiring dancer with your broken ankle. Will that silly little “formality” bar you from making a claim?
A waiver or release of claims, also know as an exculpatory agreement, is a legal contract signed by a party-participant in exchange for participation in an activity. The contract generally relieves the service provider from liability by limiting the participant’s right to sue.
Illinois courts have held that such contracts are valid and enforceable and don’t violate public policy. The waiver is a written acknowledgement of the participant’s “assumption of risk.” For the agreement to be valid and enforceable, the waiver must be clear, explicit, reference the type of activity involved, and disclose the circumstances or situations encompassed by the contract. This doesn’t mean every conceivable danger must be spelled out for the waiver to be valid.
Critical to the construction of any waiver/release is the foreseeability of the possible dangers or risks ordinarily associated with the particular activity. The participant must have notice of the range of dangers so he or she can exercise caution in light of the dangers. Whether a risk is the type associated with an activity may be an issue for a jury to decide. However, courts have concluded that certain risks are foreseeable as a matter of law. In Maness v Santa Fe Park Enterprises, Inc., the participant who signed an exculpatory agreement died from a heart attack, allegedly due to delayed medical treatment. While the waiver/release didn’t specifically contemplate the precise circumstances, the court held the agreement was valid. The court reasoned that the need for medical attention is a risk ordinarily accompanied by the dangerous sport of auto racing.
Absent fraud or willful and wanton conduct, exculpatory contracts generally will be upheld. Exceptions to this rule include waivers signed by, or on behalf of, minors. Waivers signed by minors aren’t valid, nor can parents limit or waive their child’s right to sue by signing a release on their behalf. However, a parent can be barred from bringing their own action for the death or injury of their child.
The most prudent approach to any activity requiring execution of a waiver/release is to become familiar with the risks associated with the activity. Obtain a copy of the release in advance of the commencement of the activity, and read it carefully. Ask questions if you’re unclear about any of the language. If you’re told something verbally, make a note on the margin of the release, date, and initial it. Ask the provider’s representative to do the same. If the provider refuses or won’t allow you to make changes, you need to decide if you’re willing to take the risk of possibly compromising your rights by signing the agreement. tpw