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Waiver of Liability

Is it OK to sign a waiver of liability ?

You have probably signed dozens of releases over the years, either for yourself, or one of your children. Releases, also known as Waivers of Liability, allow a company – an amusement park, dive boat, jet ski rental, boat rental, parasailing, skating rink, nursing home – or any business where you go to participate in an activity, to be immune from accident claims or injury lawsuits. Basically, if you sign the release, you waive your rights to bring an accident or injury claim against the business. But as the old saying goes, contracts are made to be broken. So are releases or waivers of liability in Florida enforceable?

The answer in Florida is that it depends on where you live. If you are in Daytona Beach, the odds are the release or waiver will be enforced against you. If you live in Fort Lauderdale, Miami, West Palm Beach or Naples, you have a better chance of winning your argument that the waiver or release should not be enforceable. Although all courts in Florida will enforce a release or waiver if it is written with specificity as to the claims you are giving up, and the two parties have equal bargaining power in the drafting of the waiver, a recent Daytona Beach appellate court expanded when an activity release or waiver of liability would be enforceable.

Previously, several courts in Florida held that in order for a release or waiver of liability to be enforceable, it must specifically state the type activity or the type claim for which the release was providing immunity. For instance, if the release was for a parasailing activity, and the company wanted to be immune for its own negligence, it would have to state the word “negligence” in the waiver. Some courts in Florida still require the release or waiver to unambiguously advise the person signing the release of any rights or claims which the person is waiving.

There was also an argument to be made based upon a situation that occurs very frequently – the two parties to the release or waiver do not have equal bargaining power. For instance, if you take your son or daughter to a skating rink, the only way the skating rink will allow your son or daughter to use the rink is by signing the release. In this situation, you have no control over the terms of the release. This occurs often because the company that is presenting the release or waiver to you has had the release inspected and written by their attorney, and pre-printed waiting for your signature. There is not usually any negotiation on the terms of the release or waiver.

However, the recent Florida Appellate Court decision held the nature and scope of a release does not have to specify each and every potential injury or claim that is being waived. The release or waiver has to be clear and unambiguous, but as long as it gives the person signing it notice that they are waiving claims, it will be enforced. The Court decision also addressed the bargaining power of the two sides to a waiver or release. It said that events where people take part in voluntarily – a running race or triathlon, or in a recreational setting like most sporting events – a person can choose not to do the event or activity, so that the two sides have equal bargaining power.

Most people are given waivers of liability when they take part in many of the outdoor activities offered in Florida – boating, jetskiing, cable skiing, sailing, scuba diving and snorkeling. A person would be wise to read the language of the release closely as you may be giving up any rights you have to pursue the company if something goes wrong.

Contact us today to learn about your legal options