Waivers: Have fun, but sign here first

Have you ever been asked to sign a form before you were allowed to take part in an activity? Did you read the form? Did you sign the form? Did you have fun after you signed the form? The answer is probably “yes” to all four questions. What happened after that? More than likely you took part in the activity, had fun, and that was the end it. What just happened? You executed a waiver (also known as a release of claim) in which you agreed not to bring a cause of action (also known as a lawsuit) against the purveyor of said fun.

A waiver is a contractual agreement where a party voluntarily relinquishes a known right. In the context of having fun, that means that the person wishing to have fun (can we call him or her the funnee?) agrees not to sue the person providing the fun (the funnor) if the funnee is injured while having said fun. This waiver can prevent an injured party from recovering for his or her injuries even if the other party was clearly the cause of the injuries. How can this be allowed to happen?

The answer is that the law presumes that people, absent some incapacity (more about this later), are free to enter into an agreement that shifts the normal burden of liability for injuries that might occur as a result of their interactions. A properly executed waiver can provide a balance between the interests of a business and an individual and thereby make an activity affordable. In other words, if the purveyor was not allowed to shift some of the burden of the cost of injury to the other party, the activity would be too expensive (insurance premiums) and nobody would get to use a rock climbing wall, for example.

So a waiver is a contract. Like any contract, the terms must be specific and explicit. The document must put the signer on notice that he or she has a right to compensation for injuries caused by the other party, reasonably inform the signor of the foreseeable dangers of the activity, and obtain agreement from the signor to exchange or bargain away the right to seek compensation for injury for some other benefit, such as the right to engage in the fun activity.

Does a waiver apply to any conduct causing injury? The general answer is no. While the law has no problem with parties shifting the burden for the risk of negligent actions, there is a strong public policy against allowing a party to escape the consequences of intentional or willful injury to another. To allow waivers to be effective in those situations might actually encourage bad behavior. So waivers are not enforceable in cases where injury was the result of intentional or willful actions of the party seeking the waiver, or an agent or employee acting in the scope of employment. Also, waivers are generally not enforceable when procured by fraud or duress (extreme force). Not allowing someone to use a rock climbing wall unless they first sign a waiver, is not duress.

Can anyone sign a waiver? Yes, anyone with “contractual capacity.” Contractual capacity is the capability to comprehend and understand the rights and obligations of entering into a binding contract. Who does not have contractual capacity to sign a waiver? MINORS. The law presumes that unemancipated minors are incapable of comprehending and understanding what they are doing. A waiver executed by a minor is therefore unenforceable.

Can a parent execute a waiver on behalf of a minor? In Illinois, as in most but not all states, the answer is no, a parent cannot execute a waiver on behalf of a minor. When it comes to a lawsuit on behalf of a minor, the minor is considered a ward of the court and any resolution of a minor’s claim for injury by a parent or anyone else would require the approval of the court. Since a court must approve the resolution of a lawsuit brought on behalf of a minor, a parent cannot logically waive the right to bring the action in the first place. But, a parent can waive his or her own rights that might derive from their status as parent of the injured minor, such as medical expenses paid by the parent.

A final thought about waivers: While you are probably not able to consult an attorney before signing a waiver, you should always consult an attorney whenever you reasonably believe that you were injured as the result of the actions of another person, even if you executed a waiver. Ultimately, the enforceability of a waiver is a question of law that will depend upon many factors, including factors not addressed in this article. It is best to discuss any specific questions you may have with a qualified attorney since there are always exceptions and special circumstances in any area of the law. 