Many people sign liability waivers without thinking much about them. You may see one before joining a gym, enrolling your child in an activity, participating in a sports league, going to an amusement park, or attending an event. These documents are often presented as routine paperwork, but if an injury happens, the business may point to the waiver and argue that you have no right to file a claim.
That can be intimidating. However, signing a waiver does not automatically mean you no longer have a case. In Texas, liability waivers may be enforceable in some situations, but they must meet specific legal requirements, and the facts surrounding the injury still matter.
If you were hurt after signing a waiver, the most important thing to understand is this: a waiver may affect your case, but it does not always end your case. You should always speak with an experienced injury attorney after a serious injury, regardless of whether or not you signed a waiver.
What is a liability waiver?
A liability waiver, sometimes called a release of liability, assumption of risk agreement, hold harmless agreement, or pre-injury release, is a document that asks a person to give up certain rights before an injury occurs. Businesses often use waivers when an activity involves some level of risk, like sports, recreation, fitness, amusement parks, trampoline parks, school trips, or other physical activities.
The purpose of the waiver is usually to protect the business or property owner from being sued if someone gets hurt. In theory, the person signing the waiver acknowledges that the activity has risks and agrees not to hold the business responsible for certain injuries.
The common misconception is that waivers are fully enforceable — they aren’t. Not every waiver is written properly, nor do they apply to every injury. And not every injury is the type of harm a business can avoid.
Are waivers enforceable in Texas?
In Texas, liability waivers can be enforceable, but only when they satisfy important legal requirements. Texas courts apply what is often called the “fair notice” standard. Under that standard, a waiver that attempts to release a party from liability for its own negligence must generally satisfy two requirements: the express negligence doctrine and conspicuousness.
The express negligence doctrine means the waiver must clearly communicate that the person signing it is releasing the other party from liability for negligence. The intent to release negligence claims must be expressed in specific terms within the contract itself.
The conspicuousness requirement means the waiver must be presented in a way that would attract the attention of a reasonable person. It should not be hidden in fine print, buried in dense paperwork, or written in a way that makes the important language difficult to notice.
Waivers Must be Clear
One of the biggest issues in waiver cases is whether the document clearly explains what rights the injured person supposedly gave up. A broad statement such as “I waive all claims” may not always be enough if the document does not clearly describe the type of liability being released. Texas authorities discussing waiver enforcement explain that courts sometimes decline to enforce broad waiver language when it does not specifically identify the types of claims or risks covered.
This matters because many waivers are written in general language. They may refer to “any and all claims,” “all injuries,” or “all damages,” but fail to clearly explain whether the business is trying to avoid responsibility for its own negligence. If the language is vague, confusing, or overly broad, the waiver may be challenged.
A waiver may not cover the conduct that caused the injury
Even when a waiver is valid, it may not cover every possible claim. A waiver is usually tied to certain activities, risks, people, and locations. If the injury was caused by something outside the scope of the waiver, the injured person may still have a claim.
For example, there is a difference between accepting the ordinary risks of an activity and being injured because a business failed to fix a dangerous condition, ignored a known hazard, used defective equipment, failed to train staff, or allowed unsafe conditions to continue. For example, working out in a gym has a certain element of risk assumed by the user, and if they hurt themselves trying to life too much, that’s usually on them.
But if equipment isn’t installed properly and fails, or if the gym allows a culture that encourages users to hurt themselves, the waiver may not be fully enforceable under law.
This distinction is important in premises liability cases. A person might understand that a sport, amusement ride, fitness class, or recreational activity has some ordinary risks. But that does not necessarily mean the person agreed to be exposed to preventable dangers caused by careless maintenance, poor supervision, unsafe property conditions, or reckless conduct.
What about gross negligence?
Gross negligence generally involves conduct more serious than ordinary carelessness, and requires knowledge that the action(s) being taken is dangerous. It may involve an extreme degree of risk and conscious indifference to the safety or welfare of others. The courts are currently been split on whether liability waivers can cover gross negligence, and some authorities describe the issue as unresolved or dependent on the language and circumstances involved.
Practically, however, it’s important not to assume waivers protects a business from every form of misconduct. If a company knew about a serious hazard and failed to act, they are most likely liable.
One such example is the roller coaster death of a young girl at Colorado’s Glenwood Caverns. While attendees certainly signed waivers before getting on rides, the park was still found responsible for the ride failure because they were warned multiple times previously and failed to act.
Waivers Involving Children
Waivers involving minors can be especially complicated. Children generally lack the legal capacity to enter into contracts, and Texas’ Supreme Court has not directly resolved every issue involving a parent’s ability to sign a pre-injury waiver on behalf of a minor child. However, lower Texas court decisions have indicated that these waivers may not be enforceable in certain situations.
This issue often comes up after injuries at trampoline parks, bounce houses, amusement facilities, sports programs, camps, gyms, and recreational events. A parent may have signed a waiver before the child was allowed to participate, but that does not necessarily mean the child is fully barred from an injury claim.
Talk to a Houston personal injury lawyer about your waiver
Waivers can make personal injury cases more complicated, but they do not automatically eliminate your rights. If you or a loved one was hurt after signing a waiver, you need to contact an experienced personal injury attorney immediately.
The Law Offices of Hilda Sibrian can review the facts of your case and help determine whether the waiver may be challenged. You may still have options if the waiver was unclear, hidden, overly broad, signed on behalf of a minor, or if the injury was caused by unsafe conditions or serious misconduct.
Hilda Sibrian has represented injury victims in negligence and explosion claims across Texas for over 22 years. If you or someone you love has been seriously injured or killed after signing a waiver, you need to call an experienced Houston attorney as soon as possible. The Law Offices of Hilda Sibrian serve all of Houston and Texas, including Sugar Land, Missouri City, La Porte, Beaumont, Pasadena, The Woodlands, The Heights, Bellaire, Kingwood, Baytown and of course Houston proper.
Call the Law Offices of Hilda Sibrian today for a free consultation, or fill out our online contact form
