top of page
  • John Kulevich

Injured after Signing a Waiver?

Updated: May 22, 2023

Have you ever been asked to sign a waiver at a trampoline park, water park, go-cart track, amusement park, or before participating in any other similar recreational activity? Have you ever wondered whether those waivers are valid and what, if anything, you are “waiving?” The language used in each waiver demands individual consideration, but I have provided some general content on waivers which hopefully will be helpful to your understanding of waivers the next time you are asked to sign one. If you were injured after signing a waiver, keep reading below to learn the law!


1. Generally, it doesn’t matter if you didn’t read it! “It is a rule in this Commonwealth that the failure to read or to understand the contents of a release, in the absence of fraud or duress, does not avoid its effects.” Lee v. Allied Sports Assocs., Inc., 349 Mass. 544, 550-551 (1965). However, it is one thing to sign something that looks like a “sign-in sheet,” and another to sign a document that says in large, bold, capital letters “RELEASE FROM LIABILITY AND INDEMNITY AGREEMENT.” The former situation may invite a challenge to the waiver in the event of an injury because actual notice to the participant of the release or limitation of liability could be questionable. But, if you are handed a document to read and sign, you will likely be deemed to have read its contents if you choose to sign it. Ask yourself when signing: Could a person of average intelligence be misled “as to whether a limitation of liability might be included in the type of document being executed?” Sharon v. City of Newton, 437 Mass. 99, 104 (2002). If the entire document is right in front of you to read, the answer to that question will likely be “no.”


2. The fact that a release is “take it or leave it” does not invalidate it. The fact that you are required to sign a release in order to participate in a voluntary recreational activity will not be seen as unfair or unconscionable by a court. Massachusetts respects agreements where risk and liability are allocated to a certain party for future negligence. In special consumer transactions, this general rule might be relaxed (to favor the consumer), but in the circumstances of recreational activities it is unlikely.


3. A parent can waive the rights of his or her child. In most cases, a contract (like a waiver or release) signed by a minor child can be disaffirmed once the minor turns 18. This is “to afford protection to minors from their own improvidence and want of sound judgment.” Frye v. Yasi, 327 Mass. 724, 728 (1951). In order to help facilitate the enforcement of contracts (among other things), “our law presumes that fit parents act in furtherance of the welfare and best interests of their children, and with respect to matters relating to their care, custody, and upbringing have a fundamental right to make those decisions for them.” Sharon v. City of Newton, 437 Mass. 99, 108 (2002) (internal citations omitted). This fundamental right includes deciding which recreational activities they allow their children to participate in. Courts generally will not disturb the exercise of parental judgment and will uphold waivers of a child’s rights by his or her parent(s).


If it seems like Massachusetts courts favor the enforcement of waivers of liability, it is because they do! But that assumes that the waiver was entered into fairly by both sides. And, as I mentioned above, each case that involves a release or waiver must be looked at individually to determine things like the opportunity to read the release, the clarity of the terms of the release, the conduct that caused the injuries (generally, releases of liability apply only to negligent conduct, but not to reckless conduct), the type of activity or event you were participating in (was it a voluntary activity, or compulsory activity?), the risks involved in the activity, and whether or not there was any fraud or duress involved in getting you to sign the release. Were you injured zip-lining, go-carting, paint-balling, bungee jumping, or trampolining (to name a few) at the hands of a business that made you sign a waiver before participating in the activity? Want a mobile Massachusetts personal injury attorney? Give me a call! I would be happy to speak with you about your case!


Zip Line Injury

Comments


bottom of page