Defeating Liability Waivers in Personal Injury Cases: Substantive and Procedural Strategies

Description

Owners and operators of gyms, spas, amusement parks, gun ranges, water sports activities, scooter rentals and other recreational facilities or activities often require participants to sign a liability release or waiver before engaging in activities, a business tactic that is becoming more common. The waiver is intended to release the owner or operator from liability for injuries a participant suffers as a result of the owner or operator’s negligence.

Although some injured individuals view the liability waiver as an automatic barrier to recovery, under certain circumstances a release can be challenged as unenforceable. The laws addressing the enforceability of liability waivers vary from state to state; however, there are general themes on enforceability that are instructive for personal injury attorneys challenging waivers.

Personal injury victims may challenge waivers on contractual grounds by demonstrating that the release was unconscionable, unclear, adhesive, or against public policy. Alternatively, personal injury attorneys can use procedural strategies to challenge liability waivers, such as alleging gross negligence, strict liability or fraud in the legal complaint; strategically timing when to challenge the waiver; and determining the most advantageous choice of law or venue for the action.

Listen as our authoritative panel of personal injury attorneys examines effective substantive and procedural strategies for challenging liability waivers on behalf of an injured client.