A waiver of liability is a written or oral acknowledgement made by a person who is engaging in a risky pursuit. In making the acknowledgement, the person usually gives up his right to sue the other party if he suffers an injury, damages, or some other kind of loss while undertaking the activity. Typically, a waiver is signed when a person undertakes a pursuit that has a relatively large amount of risk associated with it, such as surgery, flying, bungee jumping, or the like.
In order for this type of waiver to be valid, evidence of consent to the waiver normally must exist. This can be either express or implied. An express waiver of liability is usually evidenced when someone has signed a written agreement releasing the other party from responsibility. For instance, an express waiver would exist if a skier signed a document releasing a skiing facility from legal liability if the skier suffers injuries while out on the slopes.
An implied waiver of liability, on the other hand, can be less clear. By and large, it occurs when someone’s actions support that he or she voluntarily waived the right to recover damages in the event of an injury or loss. An implied waiver situation may occur, for example, if someone attends a baseball game and is hit by a fly ball. It may be implied that, by attending the game, the person assumed the risk of being injured by a stray ball.
A personal injury waiver of liability is one of the most common types of waivers. These releases are primarily used as a condition for participating in an activity by an entity that hosts certain recreational activities. An amusement park, a scuba diving company, a cruise ship, or a scooter rental company may all require their patrons to sign personal injury waivers. Essentially, by signing one of these releases, a person gives up the right to sue if he or she suffers personal injuries as a result of engaging in the specified activity.
Some courts don’t view waiver of liability provisions favorably because these clauses have the potential to allow a negligent party to avoid responsibility for negligent or reckless behavior. In other words, a waiver attempts to make the waiving party solely responsible for his or her injuries — even if those injuries were caused by the non-waiving party. Given this issue, some courts do not enforce waivers at all while other courts enforce with great caution.