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Waiver Agreements: Are They Really What You Think They Are?

October 25, 2011 Info Articles, Personal Injury

The term waiver/release agreement is often used as though the mere mention of such removes all responsibility for injury or disability. In reality, how waiver agreements are written and applied is significantly more complex. In Indiana such agreements can be enforced, but you might be surprised at when they are or are not effective.

In Indiana a waiver must contain language stating that the establishment is not being held responsible for its own negligence. Without that language specifying that the company is being released for its own negligence, an injured individual can still go forward with a case if the person was injured due to lack of care on the part of the establishment. A case our law firm recently settled for an injured person dealt with a waiver signed by our client at a climbing facility. He was then injured when a bolt hanger came out of the wall, causing him to fall. He had signed a waiver, but it did not say he was releasing the climbing facility for its negligence. The case was settled successfully for the injured person at mediation.

Even in the most carefully worded document, a waiver cannot release the establishment from gross negligence, or willful and wanton misconduct—a more extreme form of misconduct in which the establishment has specific knowledge that someone may very well get hurt. Or, in simpler terms, negligence is about carelessness, while willful and wanton misconduct is about recklessness.

Racing events are typical of situations where participants usually have to sign a waiver before being allowed to race or participate. An example of a case in which a person who signed a waiver still was able to obtain compensation for injuries was a case our law firm handled years ago, in which a race team member was hurt when a racetrack employee was driving a vehicle the wrong way down pit lane. We contended that such conduct was gross negligence, worse than just regular negligence, and the waiver should not be effective to foreclose a case being brought. We were successful in settling the case before trial for the injured man.

Different states have different ways of analyzing waiver/release agreements, so any effort to evaluate the ramifications of such a waiver/release must focus on the law of the state in question. Such agreements can be valid, but it depends on the wording of the agreement, the conduct in question, and the law of the state.

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