Waiver of Liability
A liability waiver can help to protect you or your business against potential liability for exposure claims. A waiver is simply a voluntary relinquishment or abandonment of a legal right. Waiver, Black’s Law Dictionary (11th ed. 2019). A liability waiver, sometimes also called an exculpatory agreement, is a written contract between two or more parties in which one party (generally the customer) acknowledges the risks of participating in an activity or of accepting the services of another party (generally the provider).
- Waiver of Liability
- Liability Waiver
- Exculpatory Agreement
- Exculpatory Clause
The use of a waiver of liability not only discourages many potential claimants from commencing litigation, but also causes lawsuits that are filed to be dismissed without payment, thereby lowering insurance costs and other expenses businesses might otherwise incur. Case law makes it clear, however, that the terms of an exculpatory agreement will be closely scrutinized by the courts. Courts will most likely enforce exculpatory agreements in personal injury claims arising from negligence if certain guidelines are met, thus demonstrating that it is not possible to eliminate all types of liability. Exculpatory clauses stand at the crossroads of two competing principles. Those competing principles are freedom to contract and taking responsibility for one’s own negligent acts.
Ambiguity in the agreement very often determines if the waiver of liability is enforceable. To be enforced, the clause must be written in clear, easy to understand language. Ambiguity will exist if the exculpatory clause is susceptible to two or more reasonable interpretations. If the exculpatory clause is not susceptible to more than one interpretation, it will typically be enforced as it is written.
