A liability waiver is an agreement between two parties, usually a business and an individual. The waiver frees the first party from responsibility for the other party’s injury while participating in an activity offered by the first party. Liability waivers assume that an informed person decides whether to engage in an activity or not. By participating, the customer assumes certain risks that may accompany the activity.
The business offering the activity must engage in safe practices. A business cannot practice unsafe, negligent, or fraudulent practices and ask clients to waive their rights to sue. The law assumes both parties have equal power. One party requests a waiver and the other party is free to not sign the waiver and not pursue the activity without penalty. For this reason, liability waivers an employer has their employees sign is likely to be unenforceable in court. This is because the relationship between employer and employee is not equal, as the employer typically has more power in the relationship.
Liability Waivers and COVID-19
It is unlikely that an employer could enforce a liability waiver against an employee’s risk of contracting COVID-19, because employees are generally compensated through workers’ compensation insurance for injuries caused by workplace exposures. Most state laws do not allow employers to prevent employees from pursuing workers’ compensation cases. Employers can, however, ask employees to commit to following safe practices, such as wearing masks and hand washing.
Limitations to Waiving Liability
A liability waiver is not an iron-clad guarantee that a business will win a lawsuit if a customer is injured. Egregious or intentional misconduct can void the waiver. Businesses must follow safe operating procedures and inform customers of foreseeable dangers.
The language used in a liability waiver and the specific activities described therein can be critical if someone becomes injured. In one case, a skier was injured due to mountain conditions, but the waiver mentioned injuries caused by rental equipment. The skier won. In another case, a participant was injured doing something other than the activities listed in the waiver. The court ruled in favor of the injured person.
If you or someone you know has been injured as a result of an activity subject to a liability waiver (eg: trampoline park, amusement park rides, ice skating, skydiving, etc.), consult with an experienced personal injury lawyer. Depending on the terms of the liability waiver and the nature of the injury causing activity, a lawyer will be able to advise whether the liability waiver will bar a claim for personal injuries.
Free liability waiver forms
The Internet has plenty of links for “free liability waiver forms.” If you operate a business and want customers to sign a liability waiver, consult a lawyer with experience in this area. An off-the-shelf form may not be worth the paper it’s printed on. Courts tend to disfavor liability waivers as a matter of public policy. If a person is injured subject to a liability waiver, the business still has the burden of proof to show they were operating safely and that the injury happened during an activity covered by the waiver.
Liability waiver best practices
Be clear and direct about asking customers to sign a waiver. Do not bury the waiver at the bottom of a long contract. Have the client print their name at the top and sign the bottom of the form as proof they read the document. Be specific about the activities involved and what rights are being waived. If minors participate, have their parents sign the waiver, as minors cannot sign contracts.
North Carolina courts will not honor a liability waiver that conflicts with state law, or the public interest, or that represents unequal bargaining power. A liability waiver written by a lawyer who understands your business is more likely to stand up in court.
Should someone be injured during an activity covered by a liability waiver, take immediate action and call 911. Do not discuss the waiver with the patient or family while the person is being treated for that injury. Once the injured person goes to the hospital, contact your lawyer.
If you think your business needs a liability waiver, contact a lawyer at Wilson, Reives & Silverman for more information understanding North Carolina liability waiver law and how we can help protect you and your business.