Rogers personal injury law firmWhen it comes to personal injury claims, every Rogers personal injury law firm knows that the question of liability is paramount. “Liability” is a legal term for fault, meaning who was responsible for conduct that resulted in personal injury or property damage. When it comes to liability in personal injury cases, the issue of liability waivers can be a tricky one.

Premises liability claims and liability

In premises liability case, the success of the claim depends on whether there was a legal duty the property owner had to keep the premises safe, and whether that duty was breached. Not all injuries that occur on someone else’s property result in liability. The exact nature of a property owner’s legal duty depends on many factors. Here are the answers to a few of the most commonly asked questions about these types of personal injury cases.

The duties owed by a premises owner

The duty a property owner owes to someone visiting the property depends on the classification of the visitor. Generally speaking, property owners have a duty to take reasonable care to protect the visitor from known dangerous conditions on the property.  If the owner knew of a condition on his property that would pose an unreasonable risk of harm, which his visitors could not reasonably be expected to recognize, the owner must take reasonable care to either eliminate the danger or warn visitors. A Rogers personal injury law firm can help you determine whether you have a claim against a premises owner.

What is a waiver of liability?

In order to avoid liability for personal injury, most businesses require patrons to sign waivers of liability before coming on to the premises or participating in the services offered by the business. Although the language of a liability waiver may differ from one case to another, generally speaking, the document is a legally binding agreement to waive (give up) the right to pursue a legal action for injuries sustained on the property, regardless of who may be at fault for those injuries.

Common uses for liability waivers

Liability waivers are most commonly used in conjunction with events that are inherently dangerous, requiring people who participate to expressly assume the risk of injury. Some common examples are sporting events, animal rides, ski resorts, boat or other equipment rental, extreme sports such as skydiving and bungee jumping, and NASCAR races. The purpose of the waiver in those situations is to release the business of any liability if an injury occurs.

The case of Espinoza v. Arkansas Valley Adventures

In a recent case out of Colorado, Espinoza v. Arkansas Valley Adventures, the federal court of appeals discussed a lawsuit for negligence filed after a woman was killed in a white water rafting accident. Unfortunately, the lawsuit was dismissed because the victim had signed a valid liability waiver before rafting.
In that case, the family booked an adventure through the Rockies which included a rafting trip. The victim, in that case, was swept into a logjam after their raft capsized, and she drowned. Although the woman’s son filed the negligence lawsuit against the adventure company because the family had signed a waiver of liability, which the court determined was valid.

A common misconception regarding liability waivers

As a Rogers personal injury law firm can tell you, there are misconceptions regarding the strength of liability waivers. The unfortunate reality is that most people sign liability waivers without reading the “fine print.” They want to participate in a potentially dangerous activity and the requirement to sign a waiver is simply expected. Worse than that, many people believe that there will be some way around the waiver – some loophole – should any injury actually take place. That is not often true, however.

The purposes of liability waivers

A liability waiver or release typically serves two purposes. First, the binding agreement is designed to either eliminate or reduce the legal responsibility of a business for injuries.  Second, the waiver can be used as evidence that the business notified the patron of the inherent risks of participating in the dangerous event. In that case, if litigation results, the business can use the waiver as a defense.

Is a liability waiver ever invalid?

Despite the Colorado white water rafting case, there are certain limited situations where a liability waiver may be found invalid. For instance, a waiver may not be valid if the injury arose from an activity, the risk of which, was not specifically outlined in the language of the waiver. Another way to challenge a liability waiver is to argue that the terms of the release violate public policy or other laws.

Some states have statutes prohibiting or limiting the use of waivers

Two states have state statutes that prohibit the enforcement of liability waivers in nearly all situations, including sport, fitness, recreation, and other business activities: Louisiana and Montana. New York and Hawaii also have very broad prohibitions on waivers, specifically restricting the use of waivers related to sports, fitness, and recreation.
If you have questions regarding liability waivers or any other personal injury issues in Arkansas or Missouri, please contact the Cottrell Law Office for a free consultation, either online or by calling toll-free at (888) 433-4861.

Author Photo

Wesley Cottrell

Wes Cottrell earned his B.A. from Pittsburg State University in 1981 and his J.D. from the Washburn University School of Law in Topeka, Kansas in 1985. He was admitted to practice law in Kansas in 1986, in Missouri in 1987, in Arkansas in 1989, and Oklahoma in 1993. He is licensed to practice law in the United States District Court for the District of Kansas, eastern Arkansas, western Arkansas, and western Missouri. He was Deputy Prosecuting Attorney in Crawford County, Kansas from 1987-1989.

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