Liability waivers (or releases) are something that we sign all the time and probably don't give them a second thought. Every time we are about to do something that has even the slightest possibility of injury - such as skydiving, zorbing or even just taking young kids to a bounce house - a liability waiver is presented for us to sign. The intent of the liability waiver is that if something goes wrong and an injury occurs during the activity, then you will not be able to bring a personal injury claim against the business hosting the event. Parents of school aged kids seem to sign these on a monthly basis. This past year, I have signed them for my daughter’s various sports teams, for her school and for the adventurous things she likes to do on vacation like bungee jumping and parasailing. Who knows how many times I have signed one.
I have had more than one person tell me that with a good lawyer, they will be able to get out of a liability waiver and sue the business if the business is negligent and as a result something happens to their child. Not so fast! These liability waivers, if written correctly, certainly can be enforceable and can bar an injury claim.
There is not a specific law in Texas that spells out what needs to be contained in a liability waiver in order for it to be enforceable. Instead, over the years, various appellate courts have written opinions where they interpret specific waivers and comment on the effectiveness of those particular waivers. After reading those cases, here is my take on the issue...
For a waiver to be enforceable, it should:
- Be very specific as to who is being released
- Be very specific as to what type of activities are the subject of the release
- The release language must be “conspicuous” (use all caps, bold and larger size fonts - must really stand out)
If an adult signs the liability waiver for an activity that the adult participates in:
If the waiver meets all of the legal requirements, then that person is likely prohibited from bringing a civil action if the activity that caused the harm is included in the waiver. We have seen lots of cases where the negligence of the business was apparent, but our potential client signed an iron-clad waiver. In those instances, there was simply nothing we could do. Basically, these folks had signed away their rights.
If a parent signs the liability waiver for an activity that their child participates in:
If the waiver meets all of the legal requirements, then the parent will likely have given up their right to be compensated for the parent’s damages - but the waiver is not enforceable against the child’s claim. Under Texas law, when a child is hurt due to someone else’s negligence, the parents are the ones who own a claim for the past medical bills and the future medical bills until the child turns 18. Any claim for these damages would be barred. However, Texas law also allows for the recovery of the physical pain and limitations experienced by the child. Those “damages” are owned by the child, not the parent and they are not barred as a result of the parent signing the release - and neither are the future medical bills that are the child’s responsibility (those that will be incurred after the child turns 18).
If a non-parent signs the waiver of liability (such as a friend or relative) for an activity that a child participates in:
In this instance, the courts likely will find that the waiver is invalid and will allow both the parent’s claims and the child’s claims to proceed forward. Basically, the parent or legal guardian will need to sign the waiver for it to be enforceable. Of course, that does not mean that the claims will be successful. The claims will be viewed as whether the business was negligent - which is defined as the failure to use ordinary care.
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