If you’ve ever taken athletic lessons, ridden a ski-lift, or gone skydiving, you’ve probably been asked to sign a liability waiver. These waivers are meant to protect businesses from incurring liability if one of their customers is injured or killed, but are they always enforceable? And if you’ve already signed on the dotted line, will you be able to file a personal injury lawsuit?

Are Liability Waivers Enforceable?

Under many circumstances, private individuals, business entities, and governments can be held liable for deaths or injuries caused by negligent (careless) actions. For instance, if a truck driver falls asleep at the wheel and crashes into a passenger vehicle, causing a serious truck accident, the truck driver and/or carrier company might be liable for compensating the people who were hurt. SEPTA buses are classified as “common carriers” and are thus held to an even higher standard of care should a SEPTA accident ever occur.

However, if a business offers a service which carries a heightened risk of death or injury for its customers – for example, a skydiving or scuba diving company – it will usually seek to protect itself from known risks by using waivers of liability or release forms. While exact wording varies, these documents usually consist of the following elements:

  • An overview of the activity and its associated safety/health hazards.
  • A statement that signing the waiver will allow the person to engage in the activity.
  • A statement that the company providing the waiver does not assume liability in the event of death or injury.
  • A statement confirming that the signatory party (person who signed) understands and accepts the terms of the waiver.
  • Confirmation that the signatory party, and sometimes his or her relatives, agree not to sue the company in the event of death or injury.

Specific Facts and Circumstances

It might seem outrageous that a company can indemnify itself simply by making a client sign a sheet of paper. However, there are numerous cases where people were seriously hurt by partaking in a dangerous activity, yet failed to recover compensation, because the courts upheld liability waivers in favor of the defendant.

For instance, consider the fairly recent case of Vinikoor v. Pedal Pennsylvania, Inc., 974 A.2d 1233, 1238 (2009). In 2006, plaintiff Paul M. Vinikoor participated in a bicycle tour organized by Pedal Pennsylvania, Inc. According to the judicial opinion, the front tire of Vinikoor’s bike became trapped in a set of grooves in the road, causing him to lose control and fall to the ground. The fall resulted in “injuries including a central dislocation of his right pelvis and a loss of cartilage in that joint.”

Vinikoor claimed that Pedal Pennsylvania was negligent, because the company failed to warn him of that particular hazard (“represented to Vinikoor that the route was safe when in fact there was a hidden danger”). Vinikoor also pointed out that Pedal Pennsylvania provided “a cue sheet and route description, which noted cautions at certain locations where there were dangers,” yet did not note the trail hazard at the location where Vinikoor crashed.

In response, Pedal Pennsylvania asserted that the company was not liable for the plaintiff’s injuries, because Vinikoor (1) “signed an exculpatory [guilt-removing] clause barring all claims against Pedal,” and (2) knowingly and voluntary agreed to the risk inherent in the activity.

Vinikoor argued that the language used in the waiver was ambiguous, which, if true, could potentially have rendered the waiver unenforceable. However, the court ruled that the terminology used in the waiver “was not ambiguous, and… demonstrated a clear intention to waive and discharge Pedal from all liability as a result of Vinikoor’s participation in the tour, whether caused by negligence or otherwise,” noting further that ambiguity would exist only if the waiver was “reasonably susceptible of different constructions and capable of being understood in more than one sense” – in other words, open to interpretation. The court also ruled that the waiver signed by Vinikoor didn’t violate or contradict any public policies, which could have been another barrier to enforceability.

Quoted below are a few excerpts from the waiver Vinikoor knowingly signed:

  • “You cannot ride without a signed waiver.”
  • “I hereby waive and discharge Pedal Pennsylvania, Inc…. from all liability as a result of my participation in Pedal Pennsylvania, whether caused by negligence or otherwise… I also release Pedal Pennsylvania from all damage or injuries as a result of weather conditions during the tour.”
  • “It is finally agreed that this complete waiver is binding on my heirs and assigns.”

However, other cases have found that victims did not waive their right to sue despite having signed a waiver. For example, in 2004 a New Jersey appeals court ruled that the daughter of decedent Eugene J. Pietroluongo, formerly the Assistant Essex County Prosecutor, had the right to sue Milburn’s Regency Diving Center for the scuba diving death of her father in 2001.

If you signed a liability waiver and were seriously hurt in an accident, a personal injury lawyer can help determine whether you should file a lawsuit. To set up a free, private, no-obligation legal consultation, call attorney Brent Wieand at (800) 481-5206. Brent serves clients throughout New Jersey and Pennsylvania, including Philadelphia and the Delaware Valley.