Does a Waiver Form Waive Negligence?Author: Portner & Shure
Most of us are familiar with waiver forms as we have signed them at one point or another. Whether entering a ski resort or an amusement park, these waiver forms state that by signing, you are assuming the risk and "waiving" your rights. A waiver is the intentional or voluntary relinquishment of a known right. Although a waiver form does not waive negligence, it does generally waive the right of the plaintiff to sue if negligence occurs. Negligence is defined as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. Negligence is any conduct that falls below the legal standard established to protect others against an unreasonable risk of harm.
The laws governing negligence and waivers vary from state to state. Most courts will uphold waivers of negligence. However, courts will invalidate waivers that are ambiguous or lack specificity, and waivers that are not conspicuous. In addition, courts will not uphold a waiver of "gross negligence." Gross negligence is "conscious indifference to the rights of others despite an actual, subjective awareness of the risk involved," as opposed to ordinary mistakes in the course of business. In addition, courts will invalidate waivers that are contrary to public policy.
It is most likely the floating "bouncy house" is going to turn into a products liability, and negligent supervision issue as the "house" was a toy and not a commercial playhouse. However, in the case of the hot air balloon, it is safe to assume a wrongful death claim will be filed soon and the Virginia courts will focus on the issue of waivers and gross negligence.