Updated February 26, 2019
Waiver and release agreements are often assumed to completely remove all responsibility for injury or disability. In reality, however, the way waivers are written and applied is significantly more complex.
For example, in Indiana, waivers can be enforced, but you might be surprised by 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 they were injured due to lack of care on the part of the establishment.
Even in the most carefully worded document, a waiver cannot release the establishment from gross negligence or from 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.
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.
Another typical situation where participants usually have to sign a waiver before being allowed to participate is for racing events. An example of a case in which a person who signed a waiver still was able to obtain compensation for injuries was handled by our law firm years ago. A race team member was hurt when a racetrack employee drove 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 and release agreements, so any effort to evaluate the ramifications of such an agreement must focus on the laws 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.
Laws regarding waiver and release agreements can be confusing. We are here to help.
If you or a loved one have been injured as a result of negligence, contact an Indianapolis personal injury lawyer from Wilson Kehoe Winingham. The lawyers at WKW can help you get the compensation you deserve. Call 317.920.6400 or fill out an online contact form for a free, no-obligation case evaluation.
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