300+ Google Reviews
If you’ve participated in an organized sport or a recreational activity, you probably signed a personal injury liability waiver. Even in the fine print of a concert ticket, there might be an injury liability waiver.
Are liability waivers enforceable? How can one impact an injury claim?
Schiller & Hamilton explains.
What Is a Personal Injury Liability Waiver?
A personal injury liability waiver is a type of contract. It’s an agreement between someone wanting to participate in something – like a sporting event, amusement activity, concert, or contest – and the party organizing the event. The waiver states that the organizing party isn’t liable to the participant for causing an injury, even if they are negligent.
You may hear a personal injury liability waiver called a:
- Hold harmless agreement
- Assumption of the risk
- Exculpatory agreement
- Indemnity provision
- Consent to participate
A waiver may say something like:
- “Release and Waiver of Liability and Indemnity Agreement”
- “Releases from All Liability”
- “Agrees to Hold Harmless”
- “Express Waiver of Negligence”
If you’re signing up for an activity, and you’re shown a statement, told to check a box and sign, it’s likely a personal injury liability waiver. It only takes a moment to scroll to the bottom and click the boxes. However, if you’re hurt participating in the activity, whether you’ve signed an agreement – and what it says – can make a big difference when it comes to your compensation.
How do personal injury liability waivers work?
Most personal injury claims are based on negligence. Negligence is the absence of routine care.
It is not extreme recklessness or intentional harm. A person who is hurt by the negligence of another party can usually bring a legal compensation claim.
However, if there is a personal injury liability waiver, valid and signed by the plaintiff, the plaintiff doesn’t have the legal right to bring a claim based on negligence. The parties agreed in advance that negligence cannot be the basis for a claim. The plaintiff must have another theory of legal liability or another party to name to advance a compensation claim.
What about injury liability waivers for recklessness and intentional harm?
Most liability waivers state that they waive liability for claims based on negligence. A waiver may also attempt to waive liability for gross negligence or intentional conduct. However, in South Carolina, and many other states, it’s doubtful that a liability waiver can extend to this more serious misconduct.
What Is the Purpose of a Personal Injury Liability Waiver?
The purpose of a personal injury liability waiver is to override the default law for participation in an activity. The parties to the waiver agree in advance to the different legal standards that will apply if the person signing is hurt doing the activity.
Are personal injury liability waivers good?
Some people say that personal injury liability waivers are good because they encourage people to organize events and activities. Without them, there may be fewer opportunities because people are afraid of liability.
On the other hand, some people say that liability waivers are bad because they may make organizers less careful. They say that organizers are in a better position to make an activity safer as compared to a participant. The parties to injury waivers don’t have an equal bargaining position.
Are Liability Waivers Enforceable?
It depends. Whether a liability waiver is enforceable depends on two things. The first factor is the state law that applies. There is significant state variation among U.S. states in how liability waivers are enforced. The second factor is what is in the waiver. Even in a state that recognizes waivers in general, one can be too vague or poorly written to be enforceable.
Are personal injury liability waivers enforceable in South Carolina?
Yes, sometimes. A waiver can be upheld in South Carolina, but it must be written. South Carolina courts are skeptical of liability waivers and strictly construe them. To be valid, the document must clearly state what is being waived.
How Can a Personal Liability Waiver Impact Your Claim?
A personal injury waiver may:
- Be declared invalid – and have no impact on your claim
- Apply – but do not change your case at all, because of liability for a different reason
- Apply – and prevent you from receiving compensation
When a personal injury waiver applies, it can prevent an injured person from advancing the negligence theory of the case. That can mean that the plaintiff doesn’t have a way to establish the right to compensation. However, don’t assume that you don’t have a case. Remember that courts are strict when it comes to liability waivers. Even if you signed one, it may not be valid.
We invite you to have a consultation with a lawyer at Schiller & Hamilton about your case.
Injury Liability Waiver Law in SC
Express assumption of the risk is when the parties agree ahead of time to absolve the defendant of a legal duty they would otherwise have. Davenport v. Cotton Hope Plantation, 333 S.C. 71 (1998).
An injury liability waiver may not be enforceable because of public policy. They’re not favored by law because they might make a party less careful. Pride v. Southern Bell Telephone and Telegraph Company, 244 S.C. 615 (1964).
To be valid, a waiver must be specific. The waiver in the Fisher case was overly broad because it released all liability for any person in a restricted area. Fisher v. Stevens, 355. S.C. 290 (2003).
If a waiver is specific and voluntarily signed, South Carolina courts will uphold it. In the Mccune case, the victim was playing paintball. She was struck and became legally blind in one eye. The court upheld the liability waiver. Mccune v. Myrtle Beach Indoor, 364 S.C. 242 (S.C. Ct. App. 2005); see also Huckaby v. Confederate Motor Speedway, 276 S.C. 629 (1981).
Talk to a Lawyer About a Personal Injury Liability Waiver
Our lawyers know what a personal liability waiver is and how it can impact your claim.
Contact Schiller & Hamilton. Call or message us now.