People should always be very wary about “signing away” any rights. Always consult with a lawyer to make sure that you understand what’s happening with any contracts or documents you sign, especially when it comes to releases of liability for something important. If you want to rent an ATV, have your kids go to summer camp, or take part in certain activities, you might have to sign a liability waiver. People often brush these off or claim that they are not actually enforceable, but understanding the actual law behind these claims is important.
Generally, waivers are enforceable, according to the 2018 Tennessee Supreme Court case Copeland v. Healthsouth/Methodist Rehab. Hosp. This case looked at liability waivers and determined that they are generally legal, but it also found there are three factors courts need to assess in making the determination about any specific waiver. That means that if you do sign a waiver, you might be left without any legal recourse if you do get injured.
For a free review of your waiver or potential injury case, call Howe Law’s Tennessee personal injury lawyers at (844) 876-4357 today.
What is a Liability Waiver/Release?
Liability waivers are contracts that companies and businesses have people sign to “sign away” their right to sue them for an injury. These are sometimes called “releases” because they “release” the entity from being held liable for an injury, or they are called a “waiver” to highlight the fact that the person signing “waives” their right to sue.
Whatever you call them, the point of a waiver or release is to protect the company in question. They make people sign waivers before accepting their services or participating in activities that they operate so that people do not sue them if the activity goes wrong.
Ultimately, the fact that a waiver is in place might tip you off that the activity is dangerous. In some cases, these waivers are held over your head so that you cannot start the activity or event until you sign the waiver, or they are pushed on you quickly with other documents and paperwork so that you sign it without thinking. All in all, these issues might actually affect whether or not the waiver can be enforced in your particular case.
Because waivers are sometimes so deceptive, there are even organizations that spread awareness of how dangerous waivers can be and explain the dangers to everyday people.
What Waiver Language Looks Like in Tennessee
Many people signing paperwork might not realize that they are signing a waiver. They might also be unsure of what a waiver is “supposed” to say and could be signing away more rights than they think.
Our Nashville, TN personal injury lawyers usually see waivers that have a header over that part of the document explicitly notifying the reader that it is a waiver or release. More on this later, but failing to highlight a waiver or burying the waiver language within other parts of the paperwork could actually make the waiver unenforceable.
Whether there is a header or not, the specific language usually used is sometimes simple. In simple cases, it will say that the person signing agrees to waive their right to sue the party that made the contract, or it will say that the document releases them from liability. Sometimes more complex legal language of “indemnify and hold harmless” is used. This means, more specifically, that you will pay for your injuries yourself and will not be able to file any injury claims against the party that made the contract.
Sometimes waivers are overly broad and release the party from liability for anything, not just the thing you are doing. For example, a broad waiver might prevent you from suing an ATV rental company for libel or assault when they really should be limiting it to accidental injury. In these cases, refusing to sign the waiver might be in your best interests.
Factors for Making Waivers Enforceable in Tennessee
In the Copeland case, the Tennessee Supreme Court was asked to decide whether a particular waiver was legal or not. For a waiver to be valid would mean that the injury victim cannot sue and the company gets the legal protection they wanted. Ultimately, in that case, the court found that a waiver used by a medical transportation company was not enforceable, based on these three factors that they ruled courts should analyze in other waiver cases, too:
Bargaining Power Between Parties
If the company or entity that wants you to sign a waiver has a lot of power or leverage over you and you have very little power or leverage, the waiver might be unenforceable. For example, people who rely on public transit really need to be able to use buses to get around. If the bus company makes them sign a waiver first, the rider really has no choice and shouldn’t be held to the terms they were forced into signing.
In other situations, you have the ability to use a different company or the activity you are trying to participate in is a luxury – such as skydiving – and you can always walk away instead. There, the waiver is more likely to be enforced because you have bargaining power.
Clarity of Terms
The waiver needs to be clear that it is, in fact, a waiver. A waiver that uses standard language like “waive,” “release,” and “indemnify” will often be held to be a valid waiver. It is even more likely to be enforceable if the waiver section of the contract is clearly identified with a header or the whole document is titled “Waiver” or “Release.” Waivers that are buried in the “fine print” of other documents are less likely to be enforced, especially if you have evidence that you didn’t know you even signed a waiver.
The Copeland Court affirmed a general right to contract and create waivers, and it is public policy to protect that right. But it is also public policy to prevent companies from being predatory and being able to “escape the consequences” of their negligence, in the terms the Court used. As such, courts need to weigh whether the waiver is generally in line with or against public policy.
Along with this factor, there might be specific situations where a waiver is always going to be illegal because, as a society, we don’t want those waivers to be allowed. One example is in cases where a company makes a parent waive the right to recover for their child’s wrongful death.
Call Our Tennessee Personal Injury Lawyers Today
Contact Howe Law’s Knoxville, TN personal injury attorneys today at (844) 876-4357 for a free review of your injury case.