We all have them and we all have signed them. Waivers of Liability are supposed to “hold harmless” your fire department from any liability for civilian ridealongs, internal or external training, and other department activities where there are non-firefighter employees enjoying time learning about the fire service.
Waivers of liability are generally signed by participants related to recognized dangerous activities including skydiving, bungee jumping, mountain climbing, scuba diving, skiing, traveling in outer space rides, flying commercial airlines, and deep sea explorations. Also, when your department is providing joint fire training with other fire departments.
If you are a downhill skier, look at the back of your ticket. (See – Apps v. Grouse Mountain Resorts Ltd., [2020) [i] for your unsigned liability waiver and also purchasing a ticket on a commercial airline—you accept liability for ————.
There are two main reasons a Department will want you to sign a liability waiver: 1) to document in writing that you have been warned of potential risks and 2) to remove their responsibility for injuries that arise from ordinary negligence.
A liability waiver, or release waiver, is a legal document and a contract a Department or organization requires members of the public to sign in order to protect their organization from being sued if they sustain an injury.
Many people, when handed such documents before participating in an activity or even using rideshare services on the application, hastily sign, not understanding the terms or the potential ramifications of waiving a service provider of liability.[ii]
When signing a service provider’s liability waiver, you are agreeing not to hold the service provider responsible for any injury you may sustain as a result of ordinary negligence as opposed to gross negligence.
Ordinary or Gross Negligence
When you sign a liability waiver, you agree to not hold the service provider liable for any injury you sustain as a result of ordinary negligence.
Ordinary negligence is the failure to act reasonably as it relates to general safety. Typically, if this failure to act reasonably results in an injury, then the person acting negligently can be found liable for injuries. But when you sign a liability waiver, in most cases, you are agreeing to waive your right to sue even if you can prove that ordinary negligence led to your injury.
For instance, if you go to a trampoline park, you will likely be required to sign a liability waiver. Now let’s say that, while jumping, you land on a metal spring and sprain your ankle. This metal spring should not have been exposed, but rather covered by a cushion. This may be considered ordinary negligence. The jump park, in their regular maintenance of the trampoline, did not cover the exposed spring. But because you signed the liability waiver, you are likely out of options and cannot sue.
In one such case brought before a Texas court, a woman who suffered injuries at a trampoline park sued the park for damages. The Texas court found in favor of the trampoline park and dismissed the plaintiff’s case. The court found that the waiver explicitly stated that the signer agreed to release the Department from injury liability and that the waiver was in no way ambiguous. Signing a liability waiver makes it difficult to recover injury compensation. Keep in mind that this case is specific to Texas and Texas law. It is just one instance of an injury claim after a liability waiver was signed. The law varies on a state-by-state basis, and the outcome of your case depends on the facts surrounding your injury.
Gross negligence, however, is a different category of conduct than ordinary negligence. This more extreme form of negligence generally involves deliberate or reckless disregard for the treatment of others. This kind of negligence often “shocks the conscience” and requires a level of outrageous conduct that is not needed to satisfy ordinary negligence. Courts reason that if parties act with reckless disregard for others, they should not be shielded by liability waivers, and as a result, gross negligence is one situation when liability waivers are unenforceable.
Gross negligence may make an organization liable, even if you sign a waiver. Gross negligence is more than a simple failure to act reasonably—it is a conscious violation of other people’s right to safety. This often rises above the protections of a liability waiver, giving you the option to sue in case of injury, and is essentially when parties fail to use the level of care and caution of an ordinary person, and as a result, damages resulted. The vast majority of claims involve ordinary negligence, and are thus under the scope of liability waivers, as long as such waivers are applicable to the situation involving the claim.
For example, in California, the law states that gross negligence is:
The lack of any care, or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others.
To illustrate gross negligence, consider sending an untrained observing civilian into a burning building or acquired structure to “experience” firefighting, and if they were injured or killed, the participant or their heirs will most likely have legal recourse to sue, even though a liability waiver was signed. Because the department failed to warn you of the extreme danger of a burning building, the department’s negligence put you in immediate danger. This may rise to the level of gross negligence. [iii]
Creating a Liability Waiver – The Departments Responsibility
As a fire department and before creating another liability waiver, the document must be unambiguous in its purpose and clear in its writing and intent. “Fine print”, is not the rule of the day, especially when you are representing a large governmental entity attempting to limit your liabilities.
Do not depend on the participant to read the document as ignorance on the part of the participant is not a solid basis for defending against a lawsuit – as in “they did not actually read the document before signing”.
Make sure that you fully explain the reason for the waiver, make the document “readable” and no fine print and point out the possible hazards the participant may face during the time spent in your department.
Signing the Liability Waiver
Before signing the liability waiver, there are some things you should know.
First, understand why a Department would require that you sign a liability waiver. The two main purposes of a release of liability for a Department are to:
- Document in writing that you have been warned of potential risks.
- Remove their responsibility for injuries that arise from ordinary negligence.
Second, always read the agreement carefully before signing. This seems like common sense, but often, liability waivers are presented at the very moment you are about to enter a fire station, participate in an event, or use a service. In this situation, many people simply sign the waiver without reading or understanding the terms.
Third, in most states, liability waivers are frequently found to be legally binding, protecting the department, so as a participant you can’t count on the courts overturning the agreement in your favor.
Waivers that meet the following criteria may leave you with no recourse if you sign:
- Clear language – The waiver clearly states that you absolve the service provider of all liability, including in cases of negligence.
- Format – The release of liability is easily identifiable and not hidden in a larger document or included in too small a font to be reasonable.
- Precise list – A waiver that lists specific risks or types of injuries for which you are releasing a service provider from liability is likely to be upheld if you suffer a stated injury.
- Signature – Your signature is a major part of validating an agreement. Note that with rideshare or other service apps including skiing or flying commercially, your use of the app often enters you into the agreement automatically.
- Legality – The waiver does not violate state law or public policy in terms of wording or content.
In general, when a liability waiver is signed, the participant is waiving their right to sue in the event of an injury. If you signed a liability waiver and were subsequently injured, do you have any legal recourse?
The attorney’s answer is “It depends”.
It is possible that you can sue to recover damages even if you signed a release of liability. These cases are often complex, but there are a few general instances in which the waiver could be found invalid or you may have grounds to sue a negligent third party. For example:
- Defective Products – If you were injured due to a defective product provided by the Department or organization, you may be able to sue the manufacturer under product liability.
- Gross Negligence – Even if a waiver states that you agree not to hold the Department responsible for injury, the courts may hold a Department liable for injuries arising out of gross negligence in the case of extreme recklessness or disregard for safety.
- Misrepresentation – If a service provider misrepresents the service or activity, you may have a fraud case against the service provider, and the waiver may not be found to be enforceable.
Read the Document and Create the Document to Protect the Department’s Liabilities.
The author of the liability waiver must create and actually read the document from the participant’s viewpoint.
Though it is a legal document, most people do not take the time to actually read liability waivers. However, it is important for them to read the waiver carefully and not rush to sign on the dotted line.
One reason you want to read the document carefully is to understand the potential risks you face. If the risks are specifically outlined in the waiver, chances are you will experience them. If nothing else, reading the waiver will prepare you for the activity, which may help you avoid injuries.
The document will also state that signing the waiver releases the Department of any injury liability. How this information is presented to you is important.
In all states, a liability waiver must be clear, unambiguous, and explicit. In other words, waivers cannot be printed in faded ink, in small font, on the back of a paper, or in an otherwise ambiguous form. If the waiver that you sign is not represented clearly, it may not hold up in the event of a lawsuit.
Statutory Protections
In some jurisdictions, statutes provide for situations when liability waivers are unenforceable. Some states have deemed it against public policy for liability waivers to shield against litigation in certain situations, and have legislation in place that makes it difficult to shield oneself with a liability waiver in certain circumstances.
For instance, some states prevent certain amusement establishments from taking advantage of liability waivers. This is likely because policymakers believe that places of amusement owe a high duty to customers to ensure that they are protected by rides and other attractions. Furthermore, some jurisdictions restrict gyms, fitness studios, and other similar establishments from being shielded by liability waivers as well. This is likely because policymakers want to ensure that such establishments have a heightened sense of responsibility when it comes to safeguarding the people who enter the premises.
Contract Defenses
Remember liability waivers are contracts between the department and participant. Liability waivers are unenforceable when basic contract defenses bar the enforceability of contracts are at issue in a matter.
Contracts may not be enforced by courts for a variety of reasons. For instance, if a liability waiver was signed by a minor without the assent of that minor’s parent or legal guardian, that waiver may not be enforceable. Also, if the person signing the waiver could not read or understand English, this could be another situation in which a waiver will not be enforced. In certain extreme examples, waivers may not be enforceable because they are unconscionable. Determining if contract law defenses apply to a given liability waiver is an extremely fact-sensitive inquiry since this often depends on the background of the person signing the waiver and the circumstances surrounding the execution.
Scope of the Waiver: How Broad or Encompassing Should It Be?
Another consideration that influences when liability waivers are unenforceable is the scope of the waiver. The scope of the waiver is typically determined by the text of the waiver itself, which usually lists all of the situations to which the liability waiver applies. Some liability waivers explicitly say that they apply to all claims known or unknown, but courts are more likely to enforce a waiver if the situation involved in a claim is explicitly covered by the waiver.
Drafting the Waiver
Departments drafting waivers should include all situations and injuries that might plausibly involve the parties to have the best chance of having the waiver enforced.
Oftentimes, claims involve situations that were not explicitly discussed in a waiver and may only tangentially relate to situations contemplated in the waiver.
For instance, if a liability waiver only covers personal injuries, it might be difficult for a party to use that waiver to protect the party from defamation claims or other causes of action that do not involve personal injuries. Moreover, if a waiver does not explicitly release claims by dependents or others related to the person signing the waiver, it might be possible for these other parties to pursue claims notwithstanding the fact that a waiver was signed. Since the scope of the waiver is so important to determining when liability waivers are unenforceable, it is important that this part of the waiver be carefully negotiated between the parties.[iv]
Let’s go back to the recent Ocean Gate submarine disaster where the liability waiver, according to some sources indicated death at least three times on the first page in addition to participants may experience physical injury, disability, and emotional trauma. As the bubbles have not yet settled on this disaster, there are a number of marine experts and attorneys that opine that it would be a fruitless pursuit for the survivor families and others to file a lawsuit against the Company. However remembering our term Gross Negligence, if there were aspects of the design or construction of this vessel that was kept from the passengers, one Texas Maritime attorney postulates, knowingly operating despite information that it was not suitable for this dive would absolutely go against the validity of the waiver. One additional factor related to potential litigation is the director of marine operations at Ocean Gate, was fired after raising concerns about its first-of-a-kind carbon fiber hull and other systems before its maiden voyage. This is according to a court filing in a 2018 lawsuit that the submersible could be subject to failure.
Lesson Learned
The lesson here in creating a waiver for your department operations must be clear and unambiguous language to protect your organization from Ordinary and Gross Liability. Make sure that you create a safe environment for those in your care observing department operations.
Examples of Liability Waivers
An example of a Fire Department Liability waiver from Kirkland (WA) Fire Department [v]
An example of a LAFD Firefighter Preparatory Program Liability Waiver [vi]
Endnotes
[i] Apps v. Grouse Mountain Resorts Ltd., [2020] B.C.J. No. 324, 2020 BCCA 78, British Columbia Court of Appeal, March 4, 2020, M.E. Saunders, G.J. Fitch and J.C. Grauer JJ.A.
[ii] https://www.frickey.com/blog/need-know-liability-waivers
[iii] https://www.penneylawyers.com/serious-injuries/do-liability-waivers-hold-up-in-court/#:
[iv] https://www.rothmanlawyer.com/when-liability-waivers-are-unenforceable/
[vi] https://www.joinlafd.org/pdf/Waiver_and_Idemnification_Form.pdf
JOHN K. MURPHY, JD, PA-C, MS, EFO, began his fire service career as a firefighter/paramedic and retired as a deputy chief after 32 years of service. He is an attorney licensed in Washington whose focus is on firefighter health and safety, firefighter risk management, employment practices liability, employment policy, internal investigations, and expert witness and litigation support. He was a Navy corpsman with the Marine Corps. He is a lecturer, educator, author, legal columnist, blogger, and member of Fire Engineering’s Fire Service Court Blog Talk Radio Show. He is also a national lecturer on EMS and Fire Law and is also a practicing Physicians Assistant. He is a National Fire Academy instructor and a distance learning instructor for the University of Florida Fire and Emergency Services programs.
This commentary reflects the views of the author and not necessarily the views of Fire Engineering. It has not undergone the standard peer-review process, and should not be construed as legal advice or counsel.
