When Can a Pre-Injury Liability Waiver Affect My Right to Sue?

There are a number of situations where a business will ask someone to sign a pre-injury liability waiver. Such waivers are commonly used with respect to sporting and similar physical recreational activities. For example, if you go skiing, the resort may require you sign a pre-injury liability waiver before you are allowed on their slopes.

Indiana Court Dismisses Lawsuit Over Music Festival Golf Cart Accident

Obviously, the reason a business uses these types of waivers is to protect themselves against potential personal injury lawsuits if someone gets hurt or even killed. But how effective are these waivers? If you just sign a waiver without stopping to read and understand it first, is that really all it takes to forfeit your right to compensation in the event of an accident caused by the business or property owner’s negligence?

In some cases, unfortunately, it is. Take this recent decision from the Indiana Court of Appeals, Nelson v. Cunningham Golf Car Co., Inc. In this case, the plaintiffs were two women who went to a music festival where one of them was scheduled to perform with their band. The festival operator and the venue owner required both plaintiffs to sign a release before entering the event. Essentially, this waiver constituted a pre-injury liability waiver if either suffered “death, injury, loss, damage, or expense” at the festival, regardless of the operator or owner’s negligence.

The plaintiffs signed the waiver and entered the festival. Shortly thereafter, they sustained injury when a golf car operated by a festival volunteer suffered a mechanical failure and crashed, injuring both plaintiffs. Notwithstanding the release, the plaintiffs sued the festival owner and operator for negligence.

The Court of Appeals, upholding a trial judge’s earlier ruling, held the release was an enforceable waiver and dismissed the lawsuit. The plaintiffs argued the waiver was “ambiguous, unconscionable, and against public policy.” The appeals court disagreed, noting that in Indiana, “it is not against public policy in Indiana to enter into a contract that exculpates one from the consequences of his own negligence.” However, such a contract must “specifically and explicitly refer to the negligence of the party seeking release from liability.” In this case, the release used such specific and explicit language, so there was a valid waiver.

The requirement that a pre-release injury waiver use express language is not universal. Many states will enforce broad or vaguely worded waivers that never explicitly state a person is giving up their right to sue for an injury based on the defendant’s “negligence.” A minority of states, including Indiana and Kentucky, do require such language. Indeed, in a landmark 2005 decision, Hargis v. Baize, the Kentucky Supreme Court held in a case involving a fatal logging accident that a liability waiver was unenforceable because it never used the word “negligence” or explicitly released the named defendant “from liability for personal injury caused by his own conduct.”

Contact a Madisonville Personal Injury Lawyer Today

If you, or someone in your family, is seriously injured in an accident, do not assume the responsible parties will agree to pay for your losses without putting up a legal fight. You need to work with an experienced Madisonville personal injury attorney who will help you fight back. Contact Whitfield Crosby & Flynn to schedule a consultation. We have offices in Madisonville, Kentucky; Chattanooga, Tennessee; and Indianapolis, Indiana.

Sources:

scholar.google.com/scholar_case?case=14501109036756674596

scholar.google.com/scholar_case?case=163394634437026175