In personal injury law, many clients are often confused by the meanings of the terms “release” and “waiver.” Although these terms do share certain common features, in the “real world” of personal injury law the two differ in their potential effects on a claim for personal injury.
Both waivers and releases are interpreted as contracts, which means that there are at least two parties involved and that each party has agreed to perform (or not to perform) some action in a given situation. As a type of contract, both waivers and releases are potentially enforceable by a court should either party fail to comply with the conditions (“terms”) set forth in the agreement. Also in keeping with the law of contracts is the established principle that a waiver or release that calls for an act that is either illegal or contrary to the welfare of either party is unenforceable in court.
A release is a special type of legal document in which one party agrees not to do something in exchange for some consideration, usually the payment of a sum of money, received from the other party named in the release. By far the most common type of release document is the insurance claim settlement in which an accident victim agrees to accept a certain sum or something of value in exchange for “releasing” an insurance carrier from any future claims related to the original accident or injury. Other common releases are model releases, in which a person transfers the right to use their picture or name to another person or the informational release authorizing the sharing of personal information with a third party.
A waiver is a document stating that a person is voluntarily surrendering or electing not to invoke some legal right or remedy to which they are entitled. As an example, a driver making an appearance in traffic court could waive his or her right to a jury trial and have the case decided by a judge alone. The driver’s right to a jury trial was not denied by the court but was instead voluntarily waived by the driver.
A special type of release or waiver is the “activity” release or waiver. An activity release is a document that must be signed by a participant in some voluntary activity as a necessary condition to participation in that activity. These releases are commonly used by businesses where there is an above-average risk of accidental injury, such as ski slopes or amusement parks. Activity releases are often used in an attempt to limit the liability of an event organizer or sponsor for accidental injuries or unforeseen hazards that may occur while someone is voluntarily participating in an event.
Is a Release or Waiver Always Valid?
The validity or “enforceability” of a waiver or release varies from state to state and largely depends on how the document is worded. In some states, a liability waiver may be considered valid even if it allows behavior that borders on criminal negligence while another state may require that the release clearly identify each type of potential injury and circumstance if a release or waiver is to be considered enforceable.
An event organizer, a sponsor, or even the owner of a public recreational facility that charges an admission fee has the legal right to exclude any would-be participant (or a customer) who refuses to sign a release stating that the sponsor or owner will not be held liable for any injury that may occur while the signer is participating in the event.
An activity release or a waiver does not relieve the organizer of their duty to protect a participant or a spectator from any reasonably foreseeable danger. Specifically, neither type of document can absolve a proprietor from the proprietor’s legal obligations that arise from the doctrine of premises liability.
A waiver or release is generally considered to be unenforceable if it “casts too far a net,” meaning that its terms are so vague that practically any injury claim could be barred regardless of its legal merits. If a business owner claims that his or her release form provides an all-inclusive protection from a liability lawsuit, it is very likely that the owner is not being truthful.
In summary, anyone who has signed a document that purports to limit the liability of another for an accidental injury should be aware that, in many cases, such a document is not an ironclad defense for negligence. If an injured party has been told that they have “signed away” their right to file a personal injury lawsuit, their next move should be to consult a personal injury or accident lawyer familiar with the laws of the state in which the injury occurred.