Is a Waiver Enforceable?
If you’ve ever joined a gym, rented a jetski or other sporting equipment, or signed yourself or a child up for a sports team, you have likely signed a liability waiver. These waivers are intended to protect the organization or rental facility from a lawsuit if you were to be injured while participating in their activities or using their equipment.
A waiver may be as short as a single sentence or may run to several pages. Regardless of its length, whether the waiver can be enforced depends on several factors, including what the waiver attempts to cover. How much of a waiver is enforceable often depends on the contents of the waiver itselfーand on what happened to you or your child.
If you signed a waiver and were later injured, don’t assume the waiver means you have no options. Talk to a South Carolina personal injury lawyer to learn about your options.
Common Clauses in South Carolina Liability Waivers
The most common clause in a liability waiver is an “exculpatory clause.” This language attempts to protect one party against a lawsuit by another party, even if the first party was negligent.
For instance, an exculpatory clause in a sports team waiver might state that if the player who signs the waiver is injured, the player may not sue the sports team or anyone on its staff, even if the team or staff member’s negligence caused the player’s injuries.
Another common addition to activity waivers is an “assumption of risk agreement.” In an assumption of risk agreement, the person signing the waiver indicates that they know the activity involves certain risks, but they’re willing to participate anyway. For example, a waiver for a sports team might include an assumption of risk clause stating that the player is aware that concussions, bruises, and sprains are risks involved in playing the particular sport.
Can Everything in a Waiver Be Enforced?
South Carolina courts have enforced exculpatory clauses in waivers in the past. In Pride v. Southern Bell Tel. & Tel. Co. (1964), however, the court stated that exculpatory clauses tend to cause the party protected by them to become careless about safety. As a result, courts view these clauses with skepticism.
Unless a waiver clearly states that both parties intended to protect one party against claims of negligence, South Carolina courts are not likely to find that a waiver actually does protect one party against a negligence claim by someone who was injured. The waiver must make it clear that the person who signs it is giving up their right to bring a negligence claim if they are injured, no matter how obvious it is that the other party’s negligence caused the injury.
Waivers protecting one party from liability for negligence must be very clearーand they cannot be too broad. In Fisher v. Stevens (2003), the South Carolina Court of Appeals held that if a waiver is so broad that it prevents one party from being held liable for anything at all, that waiver should be struck down as contrary to public policy.
An assumption of risk clause allows a party to claim in court that they should not be held liable because the injured person “assumed the risk” of an activity. Assumption of risk clauses also have limits, however. A court is more likely to decide that an assumption of risk clause does not apply if the injury resulted from a risk that was hidden, known only to the negligent party, or was not foreseeable.
For example, foreseeable risks of renting a jet ski include drowning or near-drowning, injuries caused by falling off the jet ski, and injuries caused by exposure to any electrical or mechanical parts of the jet ski. A jet ski with a hidden defect, however, poses a risk the renter can’t detectーand may not discover until it is too late. Likewise, a person who rents a jet ski but suffers injury by falling through a rotted board on the dock where the jet ski is moored may have a valid argument that the assumption of risk clause doesn’t cover their injuries. “The dock may be unsafe” may be a foreseeable risk of stepping onto a dock, but it is not a foreseeable risk of using a jet ski.
What to Do If You Were Injured After Signing a Waiver
After an injury, you may wonder if the waiver you signed prevents you from bringing an injury claim. The company or person for whom you signed the waiver may even claim that you cannot bring a lawsuit or seek insurance coverage.
Waivers are not automatically valid in all cases, and they do not automatically apply to every injury. South Carolina courts consider waivers on a case-by-case basis. To understand your options, talk to an experienced injury attorney.
If you’ve been seriously injured in an activity that involved a waiver, speak to an experienced South Carolina personal injury lawyer immediately. The attorneys at the Steinberg Law Firm are here to answer your questions and discuss your legal rights. Our consultations are free and there is no fee unless we collect financial compensation for you.