Prospective injury clients often ask whether they still have claims for injuries if they signed a waiver and release of liability form at a gym, trampoline park, or obstacle race. Most people think they cannot. However, signing a waiver and release does not necessarily prevent a person from recovery against a negligent defendant such as a gym, trampoline park, or obstacle course conductor. It’s important to keep in mind that while these waivers and releases can protect defendants against liability, there are limitations. Let’s explore some of the concepts involved in “signed waiver” situations.
Express Assumption of Risk
An express assumption of risk is an absolute defense to negligence, based on a plaintiff’s voluntary exposure to a known danger by an express agreement that he will relieve the defendant of its legal duty toward him.
A "Release of Liability Form" or "Waiver of Liability Agreement" is a legal document between two parties—the Releasor (the person promising not to sue)—and the Releasee (the person or company who is potentially liable). By signing this form, the Releasor acknowledges that he or she understands the risks and claims involved and agrees to not sue the Releasee for past or future injuries or damages.
In a vast majority of courts, waiver and release of liability forms (express assumption of risk) may be upheld. However, as previously mentioned there are limitations. Waivers are governed by state law, which varies somewhat from state to state. Luckily, in Arizona, gyms, trampoline parks, and obstacle course conductors face difficulty in trying to escape liability for negligent conduct based on a waiver and release of liability form because it is a question for the jury to decide.
In Phelps v. Firebird Raceway, Inc., 210 Ariz. 403 (2005), the Arizona Supreme Court ruled that the scope of a waiver and release of liability form is a question of fact decided by a jury. The facts in Phelps involved a car race at Firebird Raceway. Phelps, a professional racecar driver, signed a waiver and release of liability form. During the race, a crash occurred and Phelps was injured. Phelps filed a lawsuit against the racetrack claiming vicariously liability for Firebird’s employees’ negligence and failure to rescue.
Thus, someone who is injured, for example, by the negligence of a gym, trampoline park, or obstacle course conductor has the right to have a jury decide on the scope of waiver and release of all claims. Since these types of defendants, including their insurance company, face a significant risk in having jurors selected form various backgrounds determine the scope of a particular waiver and release of liability form, they will be more willing to settle when negligence is readily apparent.
The Structure of a Waiver and Release of Liability Form
Waiver and release of liability forms are typically structured by the client filling out his or her personal information, and any known medical conditions or illnesses, which the gym, trampoline park, or obstacle course conductor should be made aware of. The typical waiver and release of liability form contains an acknowledgment of inherent risks, an acceptance of those inherent risks and language specific to the waiver and release of liability.
Unfortunately, many do not fully understand that the waiver is intended to eliminate ALL liability from the defendant. This is because the waiver or release of liability form will oftentimes have ambiguous language that the clients do not understand. If the client isn’t made aware that the physical activity he or she will be partaking in carries specific and identifiable inherent risk of injury, a client cannot accept those risks, and as a consequence, a client cannot waive his or her rights to sue if injured.
If a waiver is signed, can you recover monetary damages from an injury that occurs at a gym, trampoline park, or obstacle course?
There are 3 questions the court/jury must answer in order to decide if the waiver is enforceable:
1. Was the language used in the waiver clear and unambiguous?
2. Was the injury caused by, or the result of a reasonably related act that the waiver sought protection from?
3. Does the waiver or release violate public policy?
Generally, the enforceability of a waiver is contingent upon multiple factors, but most of them will not preclude recovery. In other words, there are many scenarios in which an injured person can recover even if a waiver was initially signed.
For examples of waiver and release of liability forms see https://formswift.com/release-of-liability
A Lawyer’s Role When a Waiver is Involved
Gyms, trampoline parks, and obstacle course conductors, and similar businesses are susceptible to liability, and aware of the risks involved in partaking in their activities. Therefore, they make their clients sign waivers and release of liability forms.
Generally, the enforceability of a waiver releasing liability is contingent on a variety of factors and most of them will not preclude recovery. Because these aspects can be extremely tough to access, it is crucial to have any waivers releasing liability analyzed by an experienced attorney to determine if the injured party has a claim. If you or a loved one has been injured, immediately give Quintana Law a call for a FREE consultation at (602) 403-6815. We can help.