Waivers of liability are quite common, particularly in the context of recreational activities — this ubiquity means that laypeople are generally familiar with the concept of a “liability waiver” and what it entails. Simply put, a liability waiver shields the defendant from civil liability for serious injuries and damages that they cause due to their own negligence.
Still, few laypeople understand that liability waivers are not always applicable to a given situation, or that enforceability will depend on a number of different factors that could be evaluated in their favor.
Freedom to Contract
Arizona law recognizes the freedom to contract, but this freedom is not unlimited. Though two or more parties are reasonably entitled to contract around their potential liabilities, the law will not necessarily accept all such agreements as enforceable. In Arizona, for example, the state generally disfavors agreements (i.e., liability waivers) designed to release liability. As such, any and all liability waivers are strictly construed against the defendant seeking to enforce the waiver.
Determining Whether the Liability Waiver is Enforceable
Enforceability of a liability waiver depends on the circumstances. Courts will analyze the facts of the case (surrounding the liability waiver) and will consider those facts in the context of the following factors.
Ambiguity in the Waiver Agreement
Liability waivers must be sufficiently clear and unambiguous such that they function as a fully adequate notice of the inherent dangers associated with the covered activity. The dangers must be reasonably communicated to the participants. If there is ambiguity in the liability waiver language, then this will weigh against a finding of enforceability.
Specificity of the Release from Liability
In Arizona, it has been long-established by the courts that enforceable liability waivers must specify the particular risks and harms for which liability is being released. Though it is not necessary for the defendant to specify every single potential risk or harm, the language of the agreement must make it clear to the participant what the scope of the liability shield actually entails.
Public Policy Considerations
In some cases, public policy will count against a finding of enforceability. For example, a product manufacturer — say, a tire manufacturer — cannot avoid liability through a waiver agreement. Product manufacturers are held strictly liable for damages caused by their defective products. As such, it would be against public policy for them to be able to avoid the application of this strict liability framework.
The “Intentional Conduct” Exception
In Arizona, and elsewhere, liability waivers cannot be used to shield the defendant from liability for their intentional misconduct. Waivers may only release the defendant from liability for their negligent conduct.
How does this work, exactly?
Suppose that you are injured in a go-karting accident. You are vacationing with your family when you decide to compete in a go-kart race with a recreational company. When you pay for the rental, you sign a waiver of liability that exculpates the defendant from liability for damages incurred (due to their fault). Once you start go-karting around the track, however, the owner takes a second go-kart and slams it intentionally into yours, causing you to suffer serious injuries.
Despite the fact that you signed a liability waiver, an Arizona court is unlikely to enforce it, as it is not relevant to the case — the defendant’s conduct (intentional) is not covered by the waiver.
Schedule a Free Consultation With an Experienced Phoenix Injury Lawyer Today
Unfortunately, many prospective plaintiffs do not realize that they have a legitimate claim for damages (even if they have already signed a liability waiver). If you have been injured in some activity where you were required to sign a liability waiver, then you’ll want to consult with a qualified attorney as soon as possible. Your attorney will evaluate the facts of the case and will help you develop a strategy for convincing the court not to enforce the waiver.
Here at Hirsch & Lyon, our attorneys have several decades of experience serving injured plaintiffs throughout Arizona in a range of motor vehicle accident litigation. Our services are designed to prioritize the needs of our clients — not only do we make ourselves available for questions 24/7, but we are willing to make hospital and home appointments (if need be) and provide discounted contingency fees.
Call 602-535-1900 to setup an appointment with an experienced Phoenix injury lawyer here at Hirsch & Lyon. Initial consultation is free. We look forward to helping you!