The Common Law
Recreational waivers and releases
Recreational Waivers and ReleasesWhen you sign a waiver at an amusement park or go-kart track, does that release the recreational establishment from responsibility for a resulting injury?
It depends. When a patron of recreational services signs a pre-activity waiver, he or she enters into an agreement that, if challenged in court, will most likely be decided on contract law principles.
When contested, courts analyze these waivers to ensure that at the time of the signing, both parties intended to be bound by the terms of the agreement. A patron that has signed a waiver may establish that he did not intend to waive liability by showing that he was unaware that the "waiving clause" was in the document. This can be demonstrated by showing that the waiving language was inconspicuous and that the patron signed the document without notice. Additionally, the patron may argue that he was not given an opportunity to read the document before signing it. Though whether he actually read it is generally unimportant, whether he was given the opportunity to do so is important. In cases where a reasonable person could have recognized the releasing language and both parties were aware of the release terms and intended to be bound by them, courts generally recognize the waivers as valid and enforceable, thereby waiving the liability of the establishment owner.
In select situations, even when the parties intended to be bound, courts may refuse to enforce otherwise valid waivers because doing so would violate public policy. For instance, if the waiver was signed by or on behalf of a minor, Texas courts are unlikely to enforce it because of the state's long-standing policy of protecting the best interests of children. Additionally, a court is likely to find either all or part of the "waiving clause" invalid if the owner of the establishment attempted to not only relieve himself from liability for ordinary negligence, but attempted to escape liability for gross negligence as well.
Although no one can predict with certainty what will happen in court, if you sign a waiver with conspicuous terms and you are given an opportunity to read it, the court is likely to find the agreement valid. It is a good idea to read a release in detail before signing it and potentially giving away rights.
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Marrs, Ellis & Hodge LLP, www.jmehlaw.com.
The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.