Injured, But Signed a Waiver. Do I have a Legal Leg to Stand On?

Posted By: Tony Baratta | January 21st, 2016

My son has a school trip, but he can’t go unless I sign a waiver of liability.  I need to sign a waiver before I can enjoy the rides at any amusement park.  To exercise at the gym, a waiver comes along with it.  Check out the back of the ticket to a Phillies, Eagles or 76ers game.  Yep, you’ll see a waiver.   These waivers intend to insulate the venue and their employees from liability for personal injury you might suffer.

So, if the school bus driving your kid to the Art Museum crashes and your child is hurt, or a trainer at the gym asks you to do a routine that causes you a heart attack, or you get hit in the head with a hockey puck at a Flyers game, can you make a claim for the harms and losses caused by your injury?

 The answer is not always “NO” despite the fact that you signed a waiver of liability.

The liability waiver will be enforceable if the venue/sponsor of activity proves 3 things in a fact intensive inquiry:

1. That the person injured was aware of and understood the waiver.  The questions that should be considered in evaluating this include whether the writing was small and unnoticeable or what is large, highlighted and buttressed with other similar written warnings?  Was it signed?  And by whom was it signed?  Under what circumstances was it signed?  In short, the questions would elicit whether a reasonable person in the victim’s shoes would have been aware and understood the waiver.

 2. That the waiver is an enforceable contract.  An enforceable contract requires an agreement between individuals, for which there consideration offered and accepted by nature of the waiver (it cannot be an adhesion contract in which the only recourse to the signer is rejection of the transaction), the intent of the parties must be spelled out and the agreed upon terms cannot violate public policy (e.g. can’t agree to waive liability for a physical assault). 

 3. The language of the waiver specifically absolves the exact type of liability producing conduct causing injury.  For example, did the liability waiver specifically preclude a claim against the bus company for its driver’s negligence or for the failure to properly maintain the bus?  Did it waive a claim against the school for failing to hire a bus company with a safe driving record?

Much investigation must be done to evaluate whether a liability waiver acts to preclude a claim for any injury caused.  It is important that if you or a loved one are seriously injured during an event for which you signed a liability waiver, that you engage legal counsel to advise whether the waiver bars a potential claim.      

Tony Baratta is a trial attorney in Huntingdon Valley, PA who represents clients who have been seriously injured including due to medical mistakes. Tony is the founding partner of Baratta, Russell, & Baratta and on the board for the Philadelphia VIP. Tony is a Nationally Certified Civil Trial Advocate, AV Rated Preeminent by Martindale-Hubbel and a member of the Pennsylvania Brain Injury Association (BPIA).

About the Author

Anthony J. Baratta (Tony) is a trial attorney. He has tried more than 50 cases to Juries in State and Federal Courts and has litigated thousands of personal injury and medical malpractice cases in his 30-year career. Tony is the founding partner of Baratta, Russell, & Baratta and an active board member of the Pennsylvania Brain Injury Association (BPIA). Tony is also on the board for the Philadelphia VIP and performs pro bono work for the Laurel House, a non-profit for victims of domestic abuse. In addition, Tony is a member of the Million Dollar Advocates Forum for trial attorneys, voted one of Philadelphia’s Super Lawyers for the past 14 years, and a 2018 recipient of the First Judicial District Pro Bono Award for the Civil Trial Division.

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