Understanding Liability Waivers: What You Need to Know

When participating in potentially hazardous activities, whether for recreation or business purposes, you may be asked to sign a release of liability. This legal instrument, commonly known as a liability waiver, is designed to absolve a company or venue from liability in the event of an accident or injury, even if the company’s negligence contributed to the incident.

Who Uses Liability Waivers?

Liability waivers are commonly used in a variety of contexts:

• Recreational Activities: Whether you’re scuba diving, attending a car race, or using gym facilities, you’re likely to encounter a waiver. These waivers protect service providers and venue operators from being held responsible for injuries or damages that occur during your participation.
• Business-to-Business Contexts: Waivers are also prevalent in situations where employees of a commercial client participate in on-site industrial training or access manufacturing facilities for inspections. In these scenarios, the waiver protects the company offering the services or access.

Legal Foundations in Florida

Under Florida law, liability waivers are enforceable as long as they are clearly written and unambiguous. Public policy does generally disfavor agreements that exculpate parties from their own negligence, but Florida courts will enforce these agreements if they are straightforward and understandable.

For instance, the Florida Supreme Court in Sanislo v. Give Kids the World, Inc. emphasized that the wording of a waiver should be clear enough that an ordinary person can easily comprehend what rights they are relinquishing. If the language is confusing or contradictory, as in the case of Brooks v. Paul, the waiver may be deemed unenforceable.

Drafting Considerations

When drafting a liability waiver, it’s essential to:

1. Be Clear and Concise: The waiver should be as short and informal as possible, using plain language that non-lawyers can easily understand.
2. Specify the Risks: Clearly outline the risks associated with the activity and ensure the participant acknowledges these risks. For example, when dealing with motorsport activities, additional or special requirements may need to be included.
3. Include Assumption of Risk Language: Participants should explicitly acknowledge their awareness of the hazards and their voluntary decision to participate despite these risks.
4. Consider Optional Indemnification Provisions: Depending on the activity, it may be wise to include an indemnification clause, where the participant agrees to compensate the company for any damages or legal costs arising from their participation.

Industry-Specific Considerations

Certain industries in Florida, such as equine activities, have specific statutes providing immunity for activity sponsors. However, even with these statutory protections, it’s advisable to use a liability waiver to cover all bases. Florida’s equine activities statute, for example, only applies to claims related to the inherent risks of such activities, and has limitations on the immunity it provides.

Retention of Waivers

Finally, it’s crucial for companies to retain signed waivers securely. In the event of a dispute, having the original, executed waiver readily accessible can be a critical factor in upholding its enforceability.

Conclusion

A well-drafted liability waiver can provide significant legal protection for companies. However, it’s important to ensure that the waiver is clear, concise, and tailored to the specific activity in question. By doing so, companies can reduce the risk of legal challenges and ensure that participants fully understand the risks they are assuming.