What you need to know now about liability waivers and releases

What kind of activity carries this dire of a warning?

THERE IS A REAL POSSIBILITY THAT YOU MAY DIE OR BE CATASTROPHICALLY INJURED.

Swimming with alligators? Bull riding school? Whitewater rafting in the DMZ?

Nope, but those are all real activities.

That’s the warning that greeted me last weekend when I arrived at the Spartan Stadion Race at AT&T Stadium. Three miles, 20 obstacles, tens of thousands of steps, and lots and lots of opportunities to DIE OR BE CATASTROPHICALLY INJURED.

Climbing a a two story net wall over concrete with dozens of other racers? One slip of a sweaty hand and that would have gone south fast. Army crawling across a field covered with REAL barbed wire two feet off the ground? I’m lucky only my head band was snagged.

Thankfully, my only injuries are aching muscles that have reduced me to a geriatric shuffle and a sore butt from falling every time I attempted to vault a wall. Note to self – I really need to work on my landing.

Liability waivers and releases for dummies

Have you ever stopped to think of how many liability waivers and releases you have signed?

Your kid wants to play soccer or take an arts and crafts class at the local rec center? You want to take a class at the gym or get a massage?

We sign them all of the time, often without reading them.

Last week alone, I signed 15 of these for me and my kids. And no, despite the fact that I write and review contracts for a living, I only read one the whole way through (for the race where there was a REAL POSSIBILITY I COULD HAVE DIED OR BEEN CATASTROPHICALLY INJURED).

We don’t read them and yet if there was an injury, signing one of these forms could have disastrous financial implications for you and your family. If enforceable (and no, not all are – more on that below), it would prevent you from suing the business hosting the activity.

If an adult signs a liability waiver for an activity that the ADULT participates in, is the waiver enforceable?

Yes, if it is worded correctly.

Since I’m a Texas lawyer, I’m going to focus on what the law is in the Lone Star State.

While there isn’t a specific Texas law that spells out exactly what needs to be in a liability waiver and release in order for it to be enforceable, Texas courts have held that it must be very specific about who is being released and what activities are the subject of the release, and the release language must be “conspicuous” (all caps, bold and larger size, also know as “screaming text”).

So how do you know whether or not the form you are signing is enforceable? Unfortunately the answer is you won’t know until something happens, you sue the business, and a court decides whether or not it is enforceable.

In other words, if you are injured, don’t just assume that the liability waiver and release you signed is enforceable – consult with an attorney to see what your options are.

You should also keep in mind that Texas law does not allow for the pre-injury waiver and release of claims resulting from intentional torts. If you are injured because of the actions of a jack ass employee, no liability waiver and release is going to protect the business, no matter how carefully it is worded.

If a parent signs the liability waiver for an activity that the CHILD participates in, is the waiver enforceable?

The answer to that question depends on where you live.

The Kentucky Supreme Court recently ruled that liability waivers and releases signed by parents on behalf of a child at for-profit operations are unenforceable. There are other states where courts have similarly ruled including Florida, Pennsylvania, Colorado, Illinois, Michigan, New Jersey, Tennessee, Utah, and Washington.

Note that this ruling only applied to for-profit operations. There are only two states where courts have ruled a waiver between a parent and a non-profit entity unenforceable, Connecticut and Iowa.

So what’s the rule in Texas?

Assuming the waiver is properly worded, a parent signing such a waiver has given up their right to be compensated for the parent’s damages, BUT the waiver is not enforceable against the child’s claim.

Huh?

Under Texas law, the parent owns the claim for the child’s medical bills until the child turns 18, but the child owns the claims for his or her physical pain and limitations and medical bills incurred after the child turns 18. Assuming the waiver is enforceable, the parent’s claims are barred, but not the child’s claim.

Long story short, regardless of what you may have signed, consult an attorney if your child is injured.

What if a non-parent signs a liability waiver for an activity that a child participates in? Does that make a difference?

If you needed yet another reason for grandma or a babysitter to take the kids to the trampoline park instead of you, here’s a big one.

If grandma or a babysitter signs the liability waiver and release instead of you, a court is likely to find the liability waiver and release invalid. In other words, in order for the liability waiver and release to be enforceable, the parent or legal guardian of the child needs to sign it.

Have I scared you away from taking your kids to the next trampoline park birthday party or letting your kid play soccer? I hope not. But I do hope that the next time you are handed one of these forms you understand that it’s not just the entrance fee you are potentially giving up when you sign on the dotted line and initial in 30 places.