That Waiver IS Worth the Paper it’s Printed on
Liability waivers are ubiquitous in modern society. Concerts, sports events, museums, activity clubs, party rentals, and movies all incorporate them – if you’re enjoying yourself at a facility or on property owned by business or service provider, you’ve probably signed a waiver. Because waivers are so common, they are taken for granted and it is “common knowledge” that a waiver won’t prevent a lawsuit.
Common knowledge usually has some factual basis, and indeed it is true that a waiver is not a shield against a creative plaintiff’s attorney. Further, all a person needs to file a lawsuit is a piece of paper setting forth allegations and the filing fee—and if the person is indigent they don’t even need to pay the fee. Permitting a lawsuit to move forward in the face of a waiver encourages people to seek redress for their injuries—a necessary factor in ensuring that negligent or reckless conduct has consequence. The way our legal system works, whether a claim is valid or barred by a defense like waiver, is not decided until later—after considerable expenditure of time and money.
However, a well-crafted written waiver will tend to persuade attorneys not to file a claim that will likely be kicked out of court at some point. But even if the lawsuit is filed, a solid waiver can make for a decisive, favorable, and relatively quick end to litigation.
What makes a waiver worth the paper it’s printed on is how clearly and specifically it advises the person signing that they are giving up legal rights if they execute it. This isn’t common knowledge, but it is common sense; when a competent adult signs a contract, the law presumes that the signer read it. If the waiver language is sufficiently clear and unambiguous, the signer will not succeed on a claim that they did not understand the language, or that they had a different understanding of what the language meant.
Of course, a clear warning of a specific waiver can take many forms, but what counts is whether the language is clear and specific in the eyes of Texas courts. This determination incorporates the “fair notice requirement” and “express negligence rule.” A waiver must pass both of these requirements to be effective.
Fair notice is provided when the provisions are issue are conspicuous in the context of the overall document, or when the document is so short that it is impossible for the waiver clause to escape notice. In practice, this means that bold, CAPITAL, contrasting, or otherwise distinct text is used for the waiver. Unless the waiver clause is the sole provision on the contract, relying solely on brevity is not advisable. Multiple references to the waiver in the same form help, particularly when placed immediately above the signature line. It is hard not to notice a capitalized statement in bold immediately above where you sign!
The express negligence rule applies to the extent a person is asked to waive liability for injuries caused by the service provider’s negligence. Language that would relieve a service provider of responsibility for its own negligence must pass the express negligence test.
The test requires a waiver to explicitly set out what claims are being waived (this also applies to indemnity provisions). This does not require that every potential type of injury be set forth in the waiver, but it does require that all the causes of action and damage categories be listed. Some catch-all language such as, “up to, but not limited to,” may be effective when listing the types of damages that may be incurred.
An effective waiver can dramatically reduce your exposure to liability, particularly when it is but one component in a coordinated legal strategy to shield you or your company from liability. Contact us at Rogers & Elliott, PLLC to discuss how we can help you form and implement just such a strategy. [RSE]
