"Have you read the Terms & Conditions?"
Signing forms without reading them is virtually a pastime for 21st-century Americans. How many of us have actually read the consent form we sign that governs how our private information is used, how our money is kept, or how our insurance policies are structured?
That's why people reflexively sign waivers without considering the consequences of what they're agreeing to.
When we sign waivers, we usually do it without much thought. After all, we think, an accident won't happen to me. But if you are injured, all of a sudden that little waiver matters a great deal. Now, its validity determines whether or not you will be compensated for your pain and suffering.
What Does a Waiver Actually Do?
By definition, a waiver is an agreement to forgo the signer's rights in return for some kind of benefit or guarantee. For example, if you play for an adult soccer league, they may have you sign a waiver that says playing in the league means, by definition, that you hold yourself responsible for any athletic injuries. Waivers allow individuals to give up their rights in return for participating in some type of risky endeavor—physically, financially, or otherwise.
Still, there are times when the waiver can be voided. For instance, if a property owner is fully aware of a high risk of injury and allows someone else to continue using the property without notifying them, then the court may find the waiver invalid.
The Achilles' Heel of Any Waiver
If certain risks are not fully disclosed to the signer of the waiver, then the waiver is on shaky legal ground indeed.
Much of a waiver case depends on the knowledge of the injured party. Was that person aware of the danger he or she was in when partaking in the activity? There are certain qualifications for waiver cases. In order for the documents to remain valid, the injuries must arise from risks that are stated on the paper. Some property managers may want to include the term "known and unknown risks" in their waiver, in order to accommodate a broader sphere of coverage.
As well, the waiver must be drafted according to the law of the state. A waiver will also be voided if it is signed by a minor without the additional signature of a parent or guardian. Children under 18 are not considered competent to sign for themselves. However, most states do not uphold parental waiver releases.
Louisiana, Montana, and Virginia courts will not enforce the terms in recreational waivers, and other states take a very strict interpretation of the contract language.
If even one of the above requirements aren't met, then you may have grounds for a lawsuit. If you were injured and are filing a lawsuit but a waiver is involved, then you should talk to your lawyer and have him carefully review the document. By carefully dissecting the language and policies therein, he can determine whether or not you are eligible to push for monetary reward.
Whatever you decide to do, consult with a personal injury lawyer first. Initial consultations are almost always free and will give you a clear direction.