If you love extreme sports like skydiving, whitewater rafting, or bungee jumping, you know that danger is part of the thrill. However, most of the time nothing goes wrong and no one gets hurt, so it can be a shock when you do suddenly get injured. It can be even more surprising when you followed all the rules and still got hurt because the company you were with messed up.
If your injuries require a lot of time off from work and money for medical expenses, you may want and need compensation. But if you signed a waiver, this may be impossible-or maybe not. This blog can show you when waivers can be overturned so you can get the compensation you need.
What are Waivers?
Companies use waivers to try to avoid personal injury lawsuits, especially for activities that are inherently dangerous. If everyone sued when they got hurt doing an extreme sport, these companies would not be able to operate. Usually the waiver says that the person signing it cannot hold the company at fault if something goes wrong.
However, waivers can be overturned in court for several reasons.
Did the Company Mess Up?
Generally, if the company is obviously at fault, the waiver will not hold up in court. This can be for two reasons:
- Gross negligence. If the company does not provide even basic care, then it can still be held accountable, despite the waiver. For example, if a rock climbing company knew that their ropes were damaged but used them anyway, the company would be accountable for the ropes failing and causing injuries.
- Intentional harm. If an employee of the company intentionally injures you, that person (and by extension the company that employed him or her) can be held liable.
Even if the waiver says that the company will not be liable in any circumstance, the company still can be held accountable for gross negligence and intentional harm. The court may simply rule that the waiver does not stand.
Is There Something Wrong With the Waiver?
If something is wrong with the waiver itself, the court may choose to ignore it and let your case proceed.
If the waiver is ambiguous, the court may not let it stand. For example, the waiver should be clear about what situations the company will not take responsibility for. Without giving detailed examples, the waiver may not be valid.
The waiver will tell you that the company is not responsible-but where is that information? If the waiver hides that statement in a tiny font in an obscure place, the court may not consider it valid. You should be able to easily understand the waiver when you sign it.
If the waiver absolves the company of responsibility, it should also tell you what could happen to you. You should not be expected to sign away your right to sue without knowing what risks you are about to take. If the waiver does not say what the risks of the activity are, it may not be valid.
Unequal Bargaining Power
This generally does not apply to extreme sports, but it could in a few cases. When one party has power over the other or has something that the other desperately needs, waivers are less likely to stand because you could be all but forced into signing them.
This is most common in an essential service, like a life-saving medical procedure. This rule may also apply in situations like a boss forcing an employee to sign or a teacher forcing a student. However, you probably chose to participate in an extreme sport because you wanted to, not because you had to, so this is not as likely to apply. Signed by a Minor
If your child signed the waiver and you didn’t, the waiver is not valid. A minor has to have a parent or guardian sign the waiver with them.
State laws can vary on waivers. Some states almost always let waivers stand, and other states may be more likely to overturn or ignore them. Some states may even have specific laws about what can be included in a waiver, like if a waiver can automatically absolve companies of causing physical injuries. The only way to find out how good of a case you have is to consult an experienced lawyer.
Waivers complicate what could be a straightforward personal injury case. If you were injured participating in an extreme sport, your case may not be dead, and you may be able to get the compensation you need. However, it probably won’t be easy. You will need a lawyer who understands waivers and how they are treated in your area.
If you live in Pennsylvania, Gregg Durlofsky is happy to discuss your case with you and hopes that you heal from your injury quickly and receive the compensation you deserve.