They have many names—releases, pre-event waivers, disclaimers. Are you really signing your rights away when you put your signature next to those dense paragraphs? In Texas and many other states, the answer is yes, but answers vary from court to court. So don’t jump off that ledge with bungee cord tied to your ankle before reading this!
Disclaimers Are Not Always Enforceable, Just Mostly
Generally, if it meets certain criteria, a release form will be enforceable in Texas courts. This means even if a company is guilty of gross negligence, the waiver can still protect the defendant from having to pay damages. In most cases a disclaimer must:
- Specify clearly who is being released
- Specify without-a-doubt, the activities of the release
- Use conspicuous formatting and language
- Have equal bargaining power when parties sign
What Defines Conspicuous Language
The Texas Business & Commerce says “a term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it.” Usually this means bold type-face, all-caps, easily distinguishable features, and is written in easily understood language.
If it is hidden from the signee then courts might rule it inconspicuous like in Littlefield vs. Shaefer where a man signed a release form to ride a promotional motorcycle and died in a crash thereafter. The release form was inconspicuously placed. It consisted of 30 lines of text compressed into a 3″x4″ square. His estate sued for damages and the courts ruled that he was surprisingly and unfairly disgorged of his rights.
What Defines Equal Bargaining Power?
Equal bargaining power means that no party took advantage of another party by forcing a person to sign a waiver and give up their rights. A teen-ager signed up to be in a wrestling school and had to sign several release forms. He suffered an injury while at the school that put him in a coma. The parents tried to sue based on unfair bargaining power. The courts ruled that even though the only way to join the school was through signing the waiver, both parties had equal standing entering the contract; therefore, the school was not liable for negligence.
What To Do When You Sign a Waiver
You should read over the waiver and make sure you know what you are getting yourself into before entering into any activity. Look for any signs of inconspicuous language or ambiguity. Then you know it will generally not be enforceable. If you believe your case is gross negligence, have a lawyer review it and see where your rights stand. Many of these cases end tragically without the plaintiff receiving any damages for an injury or accident, but if your case is justified and the defendant was negligent, let a lawyer fight to get you the damages that are rightfully yours.