– said almost every liability waiver ever.
Whether you’ve been skydiving, ziplining, or rented a paddleboard, you’ve probably signed a document that contains similar language. Businesses ask you to sign waivers to release themselves of legal responsibility for any injuries you may incur. Historically waivers have been limited to risky activities. But today, a range of businesses, including gyms, health clubs, salons, schools, and even offices, are looking to absolve themselves of legal troubles as a result of COVID-19.
Perhaps your school or job issued a COVID waiver, and you’re wondering if you’re required to sign? Or maybe you signed one already, and you’re wondering if that eliminates your right to sue? Let’s take a closer look at the enforceability of waivers in general and what that may mean in the COVID era.
Frequently Asked Waiver Questions
What are waivers?
Waivers are legal releases that serve two purposes: First, businesses use releases to warn you about the risks associated with the activity or equipment they’re offering. Those risks generally include severe injury or death. Second, the business wants to protect itself from lawsuits by asking you to forfeit your right to sue if the worst-case scenario ensues.
Do I have to sign a waiver?
The majority of the time, if you don’t sign the waiver, you won’t be allowed to participate in the activity or rent the equipment. But the choice is still yours. Just make sure to read every word of the waiver before signing so you know exactly what rights you may be giving up. And make sure only to sign if you agree and fully understand what the release is asking you.
Do I give up my right to sue after I sign a waiver?
The answer is yes and no, depending on the situation and the language contained in the waiver. Generally speaking, the releases must contain clear language to be viable, especially in cases where you have no choice but to sign without the ability to make changes. Additionally, the content must be easy to find. If the waiver contains essential information buried in the document, you may have an opportunity to sue.
Additionally, waivers typically protect the business from accidental carelessness. But if the company exhibits “gross negligence” or extreme recklessness concerning your safety, you may be entitled to damages even if you signed a waiver.
Let’s take a look at two Florida waivers cases, with two very different results.
What rights do minors have if I sign a waiver for them?
Natural guardians are authorized, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a commercial activity provider. In 2013, the Florida Legislature passed F.S. 744.301 which grants authority for guardians to sign waivers used by commercial activity providers on behalf of minor children, but such waivers are limited to injury or loss due to the inherent risks of the activity; they do NOT protect the provider against liability for injury or loss incurred due to provider negligence. We will cover Florida waiver liability laws for minors in an upcoming article.
Enforceable Waiver Case: Sanislo v Give Kids The World
The victim in Sanislo v Give Kids The World was a mother who went to a resort with her husband and critically ill child. Give Kids The World, a non-profit for families of sick children, funded their trip. During the vacation, the family went on a horse-drawn carriage ride that broke down due to being overloaded. The mother sustained hip and back injuries and sued Give Kids The World as a result. The family signed waivers before the vacation, but the language of the document didn’t expressly absolve the non-profit of liability of “negligence.”
Ultimately the Florida Supreme Court decided against the victim. Even though the waiver did not specifically protect the Give Kids the World from negligence claims, the judges concluded the waiver’s language was clear enough to imply the inclusion of negligence. Therefore the judge decided the release was enforceable.
Unenforceable Waiver Case: Fresnedo v Porky’s Gym III
A few years ago, Florida resident Mr. Fresnedo was attacked by a fellow gym-goer at Porky’s Gym III. He was knocked unconscious and suffered severe facial injuries. Following the incident, Mr. Fresnedo filed a suit against Porky’s despite signing the release. Mr. Fresnedo’s legal team claimed the gym’s waiver was challenging to understand.
Porky’s waiver included a list of specific medical risks, including cardiac arrest. But the document did not have Fresnedo’s specific condition included. As a result, the Florida Third District Court ruled the waiver’s language did not sufficiently protect the gym from legal responsibility for his attack. Mr. Fresnedo won.
Sanislo v Give Kids The World and Fresnedo v Porky’s Gym III highlight the fact that the law on waivers in Florida is ever-evolving. As of today, there is no steadfast rule. So how could a COVID-19 waiver be any different?
What is a COVID-19 waiver?
COVID waivers are similar to standard releases in that they aim to protect the business if patrons like you get sick or injured onsite. If you sign a COVID waiver, you are theoretically acknowledging the risks and accepting the possibility of contracting the virus. But unlike standard releases, which are generally reserved for riskier activities, COVID waivers are being used by a broad set of generic businesses.
Are COVID waivers enforceable?
Grocery stores and pharmacies, for example, might have a hard time enforcing COVID-19 waivers because they’re essential businesses on which you rely to survive. And since you cannot negotiate the terms of the release, you are in a fundamentally unfair situation. Based on the imbalance of power, courts may find essential business’ waivers unenforceable.
Another factor to consider is that all businesses are legally responsible for taking reasonable steps to protect your safety. If you can prove a company put you at unnecessary risk by failing to take actions to reduce the spread of the coronavirus–including thoroughly sanitizing surfaces, posting social distancing reminders, and requiring masks in common areas, you may be able to sue regardless of a waiver.
Signed a Waiver and Suffered an Injury?
The waiver laws in Florida are fluid, yet there is legal precedent. Judges and juries render verdicts on an injury case by case basis. If you or someone you love was injured and signed a liability waiver, there may be a way to move forward with a personal injury claim by showing that the liability waiver is unenforceable or invalid under Florida law. At KL Injury Attorneys, our legal experts will conduct a free case evaluation that includes analyzing the wording and meaning of the liability waiver to see what can be done in your case.