Feb. 21, 2014 11:00 AM
Waiver

Liability waivers - what you need to know before you sign

 Liability waivers are everywhere. We find them in recreational sports application forms (youth and adult), on signs and menus in restaurants that serve raw oysters, in church and school field-trip permission forms, on parking garage tickets, in alarm service monitoring contracts, etc. But have you ever wondered whether these waivers are valid and enforceable under Louisiana law?  

This question bears not only on the legal rights of the consumers who sign and/or consent to these waivers but also on the legal exposure of individuals, businesses, churches and schools using these waivers to insulate themselves from the risk of legal liability.

So, are they enforceable? It depends on what type of liability is purportedly being waived.

My first exposure with a liability waiver was at the age of 8 when a neighborhood friend received a new trampoline for his birthday. Before we were allowed to jump on the trampoline, our parents had to sign "liability waivers." Probably unbeknownst to anyone involved, the liability waiver wasn't worth the paper it was written on. This rule of law is codified in Article 2004 of Louisiana's Civil Code, which states that "[a]ny clause is null that, in advance, excludes or limits the liability of one party for causing physical injury (my emphasis added) to the other party."

How might this apply to you? If your child, for example, is hospitalized for heat exhaustion caused by a coach who negligently failed to allow for adequate hydration during a hot summer practice, the liability waiver that you signed does not protect the coach or the soccer association. Or, if you are required to sign a liability waiver before being allowed to ride on a Mardi Gras float and you are injured due to the negligence of the driver pulling the float, you still have the right to be compensated for your injuries and medical bills. That's correct - anything that you sign in advance that purports to waive liability for physical injury is not enforceable.

If this is true, then why do we still see so many personal injury liability waivers? Some users of these liability waivers are simply ignorant of the law that deems the waivers unenforceable, and some rely on the ignorance of the parties signing the waivers. Others use the personal liability waivers in the hopes that the party signing it will honor the agreement on moral grounds. Some want the waivers in place just in case the law changes on this issue. Also, though not technically enforceable, in the event of a lawsuit, these liability waivers can potentially be used as evidence to demonstrate that the party who executed the waiver had notice of the inherent risk or danger at issue, which may be relevant to the issues of liability and comparative fault, and which may impact the amount of damages awarded, if any.

Personal injury waivers should not be confused with property damage waivers. Property damage waivers are enforceable under Louisiana law. However, a waiver purporting to exclude or limit liability for "intentional acts" or "gross fault" is unenforceable; such waivers are viewed as being against public policy.

The enforceability of liability waivers can affect the average consumer, business owner, school or church every day and in ways you probably never imagined. Take a look at the fine print of your security alarm monitoring agreement, for example. Does it include language that excludes or limits the liability of the security company in the event of fire, theft or other loss? If it does, and if the security company's ordinary negligence causes property damage (destruction of your home/inventory), the waiver can be used to defeat a claim, unless the property damage was caused by an intentional act or gross negligence. So, if the ordinary negligence of a security company causes your $600,000 home or your $6 million business inventory to go up in smoke, you will likely have no recourse against the company to recover your losses if you signed a contract with a liability waiver. But if the security company's negligence results in physical injuries relating to fire or smoke inhalation, that same liability waiver would be unenforceable as to a personal injury claim.

It is very important to note that a liability "waiver" (that which purports to exclude liability before the loss occurs) is not the same as a "release" (a document that relieves a party of liability after the loss occurs - usually in the context of a settlement). A release (or waiver executed after the occurrence) is generally enforceable (absent fraud, duress, etc.).  

Before using a liability waiver as part of your business and before consenting to a liability waiver (or signing a release) in a situation with potentially significant consequences, it is always a good idea to consult an attorney for a legal opinion on the enforceability of the waiver or release.

Also, keep in mind that this discussion is limited to Louisiana law; laws relating to the enforceability of liability waivers can differ from state to state.

Troy A. Broussard is a partner with the law firm of Allen & Gooch in Lafayette. His practice focuses on general and professional liability defense, parochial entity representation, insurance coverage, fraud investigation, and employment litigation.

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