Waiver and Release of Liability Forms: Understand What Rights You Are Signing Away

April 5, 2011

This past weekend I took my daughter to her friend’s birthday party located at an indoor playground facility. I am sure anyone who knows or is closely related to a toddler or young child is familiar with these types of places. These establishments are located in neighborhood warehouse-like buildings and are geared towards hosting birthday parties or other special events. Inside you will find large rooms filled with inflatable bounce houses, slides, obstacle courses, zip lines, trampolines, or other permanent play structures. Unfortunately, the legal community has seen an increase in the number of injury claims from users of these indoor facilities. Some involve severe injuries including broken arms, legs, ankles, backs and necks. Not surprisingly, most companies in this industry require all participants to sign a waiver and release of liability form before they are allowed access onto the premises. It is important for members of the general public to understand the significance of the waiver and release agreement they are signing and the ramifications such forms can have. If such a form is found to be enforceable, it may ultimately act to bar a person’s right to recovery.

Generally speaking there are three requirements for an executed waiver and release of liability form to be enforceable. First, the agreement must be clear and unambiguous. Ambiguities to the agreement will be construed against the drafter. Ambiguities may be found in the identity of the parties to be released or the specific activity identified.

Second, the injury producing act must be reasonably related to the object or purpose for which the plaintiff signed the release. Here, the release may only cover reasonably foreseeable risks and yet the injury producing act may be something completely unforeseeable. Alternatively, the release may seek to exclude liability for a specific activity but not include a defect in the premises themselves.

Third, the release cannot conflict with public policy. A release cannot seek to exclude acts that violate a statute or regulation or any acts of gross negligence, recklessness, or intentional conduct. Product liability claims related to a defective product cannot be released and such attempts are also unenforceable. There are also contractual defenses to the enforceability of such agreements including fraud, duress, unconscionability and execution of a release by a minor.

Be aware that a court may ultimately find an executed waiver and release form enforceable and it may act to bar recovery in the event of an injury. It is therefore important to review waiver and release forms carefully. It is also important to remember to keep a close eye out to protect your own safety and the safety of your loved ones and others at such facilities. Should you have questions about whether a waiver and release of liability form applies to a case involving yourself or a loved one, please do not hesitate to contact our office to discuss your particular matter.

Michael A. Penn, Esq.