Release and Waiver of Liability Forms -- Enforceable?

Factual Questions
1

I’m scheduled to do an “Operation Home Delivery” build (where they do pre-fab houses and ship them off to the Gulf region) for Habitat for Humanity this afternoon. They emailed me a “Release and Waiver of Liability” form that I am very not happy about having to sign. I’ve dealt with this type of thing before, and actually got the Redondo Beach Fire Department to have their Release of Liability form to participate in their CERT program completely revamped by the City Attorney. But there’s no time for that with this one today, so I’m wondering how enforceable these things are.

It reads, in part:

Well, no, I really don’t care to sign away my legal rights, nor those of my husband, thankyouverymuch. Especially in the event of one of their employee’s negligence. Can one really sign away the legal rights of other people anyway? How enforeceable are these atrocities?

2

I’m not a lawyer, but it’s probably not enforceable at all, if there is an act of negligence on their part.

They’ve got a strict duty to take reasonable care in their actions, and a brief paragraph of legalese is not likely to absolve them of that duty.

FWIW, if you’re working in California, you’ve already tacitly approved such a release of liability as CA is a “no-fault” state as far as workers’ compensation and injuries at work. There are exceptions to this, but generally they don’t come into play unless a worker is killed and criminal negligence can be proven.

Back to H4H’s release: It’s badly written. Badly, in this case meaning far too short. Have a look at the AIDS Lifecycle release for one example of an apparently well thought-out release that’s probably been looked at by a handful of lawyers. Also note one of the last paragraphs that acknowledges that law might override the release:

3

IANAL

Many, many moons ago, when I took business law in college, our prof suggested that such waivers of liability are totally unenforceable.

Not only do people sue all the time, they actually sue and win.

Now, I’m in Canada, and that was a long time ago, but negligence is negligence and no crappy waver makes it not so.

Hopefully a real lawyer will be long soon to confirm this, or call me a dumbass. :slight_smile:

4

[QUOTE=Shayna]
I’m scheduled to do an “Operation Home Delivery” build (where they do pre-fab houses and ship them off to the Gulf region) for Habitat for Humanity this afternoon. They emailed me a “Release and Waiver of Liability” form that I am very not happy about having to sign. I’ve dealt with this type of thing before, and actually got the Redondo Beach Fire Department to have their Release of Liability form to participate in their CERT program completely revamped by the City Attorney. But there’s no time for that with this one today, so I’m wondering how enforceable these things are.

It reads, in part: Well, no, I really don’t care to sign away my legal rights, nor those of my husband, thankyouverymuch. Especially in the event of one of their employee’s negligence. Can one really sign away the legal rights of other people anyway? How enforeceable are these atrocities?
[/QUOTE]

I am not a lawyer, but everything I have read over the years tells me these waivers are unenforcable. Consider that the only reason to sue is if you think the other entity has done something wrong. In that case, what difference does it make whether you signed a piece of paper? The other entity cannot escape their obligations. I assume the reason people still ask for these documents is the hope that it can be used to scare away a few lawsuits. Some lawyer will get aggressive and inform you that since you signed the waiver you can’t sue. Some people might fall for that.

5

I disagree with the above responses. Exculpatory clauses are often enforceable.

(State laws do vary, and such clauses may not be valid in your state in specific circumstances, but I have never heard of a state where they are never upheld.) In Illinois, they tend to be enforceable if they are well-drafted, although there are some situations where they are not allowed.

Cite for above (especially the “I disagree” part): http://www.rsplaw.com/newsletter/Exculpatory%20Clauses.html

Disclaimer. I’m not licensed in California. I’m not your lawyer. This is general information and not reliable legal advice. See a lawyer licensed in your state for that. By reading this reply, you agree to waive and release me from any claims resulting from the fact that I posted it.
(Okay, so maybe that last sentence wouldn’t hold up.)

6

I was going to post a similar question. When I was in Florida a couple of weeks ago, I took the Gases on a boat ride. We all (even the children 7 & 10) had to sign a waiver, relieving the carrier from any liability, including that resulting from negligence of action or inaction, although it explicitly excluded gross negligence. I’ve no idea what consitutes gross negligence, legally.

I was hesistant to sign something that extreme but I also wanted to go on a boat ride. I asked to have a copy, but they wouldn’t let me have it. I said, “Well, I need a record of anything I sign.” They tried to hand-wave it away, “Oh, the Coast Guard requires us to keep a list of all the passengers, that’s all it’s for.” Well, that’s crap, their lawyer told them to do it.

So would they be liable if the captain had a heart attack and sank the boat? How about if he was drunk and sank the boat? How about if the boat was leaking because of lack of repair and sank? I don’t really want answers to those questions, I’m just groping for where is the line for gross negligence, and how enforceable is such an agreement.

7

Thanks for the replies so far, everyone. I ended up signing it, but noting that I objected to that particular clause, not that that would necessarily mean anything, but at least if I ever had to go to court, there’d be some record that I was not fully in agreement. Since the build went without a hitch or an injury, it’s moot anyway (the waiver is only for each particular build).

CookingWithGas, I hear ya. And I was thinking about it and remembered incorrectly in my OP – it wasn’t the CERT program that I got the waiver changed for, it was the Citizen’s Police Academy. Their waiver stated that not only did I waive my legal right to sue in the event of negligence, but also in the event of acts that were intentional. I said to the officer I brought my objection to, that that was absurd. It basically gave them the right to get pissed off, point their gun at my head and shoot me, and even though they could be charged with a felony, my husband couldn’t sue them civilly – not that I expected them to really do such a thing. Still. And at least they were nice enough to listen to my concerns and actually follow up on them and effect reasonable changes.

I also refused to sign one of these things from my doctor’s office recently. It literally said that I was agreeing to waive my Constitutional rights. Uhm, no way. Sorry. They claimed it was something my insurance carrier wanted me to sign, so I called the insurance company and asked and not only did they deny it was their form, but advised me not to sign it.

These things really piss me off.

8

Shayna, did you sign the contract as presented, or did you add handwritten notations with initials from both parties? Courts will interpret handwritten notes before they interpret printed statements as proof of the parties’ intentions. IOW, if you do not like the terms, strike them out, substuitute your own, and get them to initial the change. You’re covered. Of course, this is all subject to what your lawyer tells you.

Standard disclaimer: IANAL, I am not your lawyer, see a licensed and accredited lawyer in your jurisdiction for a proper opinion, etc.

9

[QUOTE=CookingWithGas]
I was going to post a similar question. When I was in Florida a couple of weeks ago, I took the Gases on a boat ride. We all (even the children 7 & 10) had to sign a waiver, relieving the carrier from any liability, including that resulting from negligence of action or inaction, although it explicitly excluded gross negligence. I’ve no idea what consitutes gross negligence, legally.
[/QUOTE]
Again, IANAL, and I am not your lawyer. But I’d have a few questions:

– When was the waiver signed? When you paid the fare, or later? Did you know, at the time you paid the fare, that there was going to be a waiver of liability to be signed later?

– You do know that the Gaskids are too young (at 7 and 10) to sign an agreement or a waiver, don’t you? In negligence, they may be old enough; in this case, where they are to expressly exclude themselves from the operator’s liability, they probably are not.

– What were the circumstances of signing? Hurried and rushed? Or relaxed and understood? Was it a standard form? Did you have the chance to negotiate it?

– Was it an exclusion or a limitation? That is, did the boat company specifically exclude themselves from liability, or only limit it?

There are other questions I could ask. But we will leave them for now. Again, IANAL, and you are not my client.

Inasmuch as I hate to say it, I may be a great ambulance chaser…

Do any more legal Dopers have anything to add? Or to tell me where I’m totally wrong…?

10

[QUOTE=Spoons]

Inasmuch as I hate to say it, I may be a great ambulance chaser…
[/quote]

Imagine how much we hate to hear it. :rolleyes:

Given that both the OP and the person to whom you are directly replying are asking about particular factual situations in which their legal rights were at issue, none of us lawyers are going to give any detailed responses here, I’d wager. We have nowhere near the requisite factual knowledge to answer the question funny and correctly, and one thing every law school graduate learns is to keep his mouth shut until he knows the score. Otehrwise you get clients zigging when they should have zagged and then blaming you since it ibviously can’t be their own fault that they failed to tell you obviously relevant information. Not that I accuse anyone in this thread of such motives, but you can’t be too careful. Especially since none of you are covered by our malpractice insurance.

–Cliffy, Esq.

11

Heh. That should have be fully and correctly. So much for my touch-typing skills.

–Cliffy

12

Not at all my area of specialty, but I seem to recall that a waiver of someone
else’s liability due to their negligence is generally not effective.
And I second (third? fourth?) the suggestion that you at least try to strike out any language with which you are uncomfortable.

13

IANYL, standard disclaimers:

In general, as Random notes, these liability waiver clauses are enforceable. It depends on the state and how well they are drafted. In general, though, clauses that waive away rights and liabilities that are not able to be waived either by law/statute, or is demed unconsciounable (I’m sure I spelled that wrong), those will either be struck out of the waiver, or the waiver struck down entirely (depends on the jurisdiction). Likewise, even tightly worded disclaimers can still be argued against and nullified by a party’s actions.

14

When you lawyers cook these releases up, where does the language come from?

A) From language in release forms that, in your jurisdiction, have proved effective is providing protection against lawsuits

–or–

B) Cooked up to be a broad as possible without being offensive or silly w/o being
based on much real knowlege of case law where some particular language in a release was helpful.

From the very wide variety of language I see in release forms and permission slips, I suspect “B”.

I really enjoyed the response of a hospital attorney when I asked for his advice about specific language to use on a permissions slip for a camping trip for some (psych) patients:

“A permission slip is a nice idea, but negligence is negligence and it’s <Chief of Service> 's ass if you screw up”.

15

[QUOTE=CookingWithGas]
I was hesistant to sign something that extreme but I also wanted to go on a boat ride. I asked to have a copy, but they wouldn’t let me have it. I said, “Well, I need a record of anything I sign.” They tried to hand-wave it away, “Oh, the Coast Guard requires us to keep a list of all the passengers, that’s all it’s for.” Well, that’s crap, their lawyer told them to do it.

So would they be liable if the captain had a heart attack and sank the boat? How about if he was drunk and sank the boat? How about if the boat was leaking because of lack of repair and sank? I don’t really want answers to those questions, I’m just groping for where is the line for gross negligence, and how enforceable is such an agreement.
[/QUOTE]

That is an interesting situation. Out of curiosity, do you remember if this was a CG inspected vessel?

Vessels less than 100GT can carry up to 6 passengers for hire without CG inspection of the vessel. The master, however, needs to be licensed. (Up to 12 pax for >100GT)

If the vessel was carrying more than 6 (or 12), the boat would need to be inspected and certificated by the CG. These vessels will have an inspection sticker visible to the passengers, and the actual Certificate of Inspection will be posted somewhere visible to all on board.

Any other operations beyond the above are illegal.

I have asked several Senior Marine Inspectors here in the office, and they have never heard of such a practice on small passenger vessels.

Liability waiver or no, should the Master or crew screw up due to negligence, the CG will go after them, as they are required to be licensed. The CG will pursue civil or criminal cases as the incident dictates.

Personally, I would never pay for a boat ride unless they were certificated and/or licensed, and I would never sign a liability waiver in any case.

16

[QUOTE=Scruloose]
That is an interesting situation. Out of curiosity, do you remember if this was a CG inspected vessel?
[/QUOTE]
I did not pay any attention to any certifications that might have been posted. The boat was a pontoon boat that could carry probably 25-30 people. There were over 12 on the trip I took. (It was a short trip out of St. Pete Beach in Florida to look for dolphins then park at Shell Island for a while.)

17

[QUOTE=CookingWithGas]
I did not pay any attention to any certifications that might have been posted. The boat was a pontoon boat that could carry probably 25-30 people. There were over 12 on the trip I took. (It was a short trip out of St. Pete Beach in Florida to look for dolphins then park at Shell Island for a while.)
[/QUOTE]

That being the case, the vessel was required to be inspected and certificated, and it probably was. I did a little checking and I could not find anything which prohibited small passenger vessels from requiring a liability waiver. I did, however, find a pamphlet from the University of Alaska’s Marine Advisory Program which dealt with insuring a charter boat. It said, “The liability waiver is a form that attempts to get the client to agree not to sue if an incident occurs. Marine insurers generally agree that the liability waiver form is worthless in most cases, and most don’t require it. One exception would be a hold-harmless contract for unaccompanied shore excursions, as mentioned above.”

What it doesn’t say, is why it’s worthless. I’m assuming it’s because it wouldn’t hold up in a civil case where negligence is involved, but perhaps Im reading it wrong.