You may sue even if you signed a waiver, if your damage was caused by gross negligence, strict liability negligence, an intentional tort, or where you signed a waiver that was deceptive in nature or when it was obvious you were unable to understand the waiver at the time.
Waivers can be a little bit complicated in the world of law. Businesses try to protect themselves the best they can, and it may seem like it is impossible to sue for damages once a waiver is signed. This is not the case. This blog will attempt to educate you on the general contours of the law regarding your ability to sue after signing a waiver.
What is a Liability Waiver?
Companies may have you sign a waiver in situations when you are planning to utilize their service relating to a dangerous activity, such as skydiving, ATV driving, or snorkeling. In many cases, companies may try and have you sign waivers for activities that should not really be inherently dangerous, such as boat tours.
There are a few different types of waivers, some regarding legal rights, and other private rights, but the most applicable waiver to this blog is the liability waiver.
The liability waiver is a document that forbids you from suing the company in the case of negligence committed by the company. Most liability waivers go further than this, saying you are not allowed to sue them for even intentional acts that cause harm to your or other customers with you.
Companies use these waivers for two reasons. First, they are enforceable in certain situations, and can create strong legal protections for the company. Second, even in the situations where they are not enforceable, they can dissuade prospective victims from filing lawsuits or even meeting with an attorney to determine their rights.
What Are The Different Types of Negligence?
Before we can analyze whether a waiver is actually enforceable, we must first go over the different types of negligence that exist. Certain types of actions can never be covered under waivers.
General (Comparative) Negligence
General Negligence is negligence that occurs when a person has a duty of reasonable care to another person, breaches that duty, and causes damages to the victim. To simplify the definition: a person commits negligence when they intentionally act in a dangerous and unreasonable way that causes damage to the victim. This type of negligence can generally be waived by companies. This is helpful for companies that intentionally run inherently dangerous activities, such as skydiving, where it would be easy for them to be liable by virtue of the activity. Waivers cover this type of negligence generally.
In calculating damages for comparative negligence, the fact finder will determine both the offender’s and the victim’s percentage of responsibility for the accident. For example, if the victims are 10% responsible for the accident, then their damages of $100,000 will be reduced to $90,000 or by 10%.
Some states still use different systems for calculating damages, such as contributory negligence. Florida is a pure comparative negligence state.
Gross negligence is a form of negligence above the rest. This type of action is generally considered negligence that is so extreme that waiving the negligence is simply at odds with societal norms. Actions such as failing to provide first aid in accidents, or not adhering to legal guidelines are considered forms of gross negligence. This type of negligence cannot be covered under waivers. If the negligence in your case is considered gross negligence, then you likely have a case even with a waiver.
Certain activities are considered so dangerous that Florida law makes the perpetrator of those activities automatically liable for any damages caused by said activity. This includes ultra-dangerous activities, such as blast mining. It also includes certain injuries, such as dog bites. Generally, these types of negligence cannot be covered under waivers.
Intentional Torts are not negligence, but rather acts where someone intentionally causes damage to the victim. Punching someone or intentionally damaging property are common examples of intentional torts. These are of note only because intentional torts cannot be covered under waivers.
Do You Have a Legal Case if You Signed a Waiver?
You still have a legal case in many situations where you signed a waiver. First of all, if the damage you suffered was due to gross negligence, strict liability negligence, or an intentional tort, said waiver cannot protect the company, even if it directly says you cannot sue for those reasons. Even in situations where your harm was caused by general negligence, there may be situations where you still sue:
If you were coerced or under the influence when you signed the waiver
In situations where you were not in your right mind when you signed the waiver, either due to threat of violence, or obvious intoxication, the waiver is likely ineffective.
If the waiver was misleading or too difficult to understand
If the waiver does not disclose how truly dangerous the activity is, or is written in a way where it is difficult for a layperson to understand, the waiver is likely ineffective.
What are some examples where waivers can be ineffective?
- Where the staff are intentionally not following safety laws and guidelines relating to the activity.
- Where the staff do not have the proper education or certification to run the activity.
- Where the staff intentionally fail to block off or warn of any known dangers in the area.
A personal injury lawyer can comb through the Florida state safety regulations the business is required to follow. If a system was not up to code or if a company was not in compliance with specific legal safety restrictions, your waiver will be weaker in the courtroom.
An experienced personal injury attorney will also be able to decipher the type of negligence that caused your damages, so that they can determine whether the waiver could be effective at all. These things can be hard to determine without experience, which is why it is important to have a reliable and trustworthy lawyer on your side.
Bulluck Law Group has the experience, knowledge, and reliability needed to bring your case to its most favorable outcome. Contact us for a free consultation today.