Can You Sue After Signing a Liability Waiver in Washington State?

Colburn Law

Posted in Safety Tips on August 7, 2020

If you have ever participated in an activity that posed a potential risk to your safety, you probably had to sign a liability waiver. Common activities that require a liability waiver include trampoline parks, carnival rides, sports, and community fun runs.

These waivers essentially release a certain party from liability in the event of an injury or death, even if the party’s negligence caused the injury. While liability waivers often allow businesses to avoid lawsuits or mandatory shutdowns, there are some situations where you may be able to file a claim to recover damages following an accident.

Scenario #1: The Waiver Violates Public Policy

No liability waiver may violate Washington public policy. If a waiver’s language violates a public policy interest of the state, is against the public good, or poses an injury to the public, you will likely be able to file a claim against the entity providing it.

To prove a waiver violates public policy, you will need to evaluate your claim against six factors established by the case Tunkl v. Regents of the University of California.

• The activity may qualify for public regulation.
• The entity enforcing the waiver is performing an important service to the public.
• The entity is willing to perform the service for any member of the public.
• The entity possesses a significant amount of bargaining power over a member of the public.
• The entity presents the waiver to the member of the public and provides no option for the member of the public to obtain protection against possible negligence.
• The member of the public is under the control of the entity.

Scenario #2: Gross Negligence Occurs

Washington will not enforce a liability waiver if an instance of gross negligence occurred. Gross negligence occurs when the at-fault entity exhibits extreme indifference or reckless disregard for the health and safety of the people participating in the activity.

Unlike regular negligence cases, which often involve simple carelessness or an inability to act, gross negligence is likely to result in severe harm. For example, if a carnival ride operator is drunk while at work and causes a serious accident, he or she commits an act of gross negligence. In these situations, you can file a claim against the carnival.

Scenario #3:  The Waiver Clause Is Ambiguous

For a liability waiver to be enforceable, you need to know what rights you are waiving when you sign the document. If the waiver contains vague, ambiguous, or unclear language, you may be eligible to file a lawsuit if you suffer an injury while participating in the activity.

A waiver must contain clear and unambiguous language, and the entity enforcing the waiver must not hide the clause within a larger document. The liability waiver must be obvious and prominent, and if the company takes steps to hide it, you may be able to pursue legal action.

Do You Need a Lawyer for a Liability Waiver Claim?

While it is possible to file a lawsuit after signing a liability waiver, proving that you have the right to file a claim can be difficult without a lawyer. You will need to identify specific language within the waiver that would qualify your case under one of the above scenarios, and without legal experience, it can be difficult to build your claim.

A personal injury attorney will have significant experience reading and interpreting liability waivers, helping you understand whether or not you qualify for a lawsuit. Your lawyer will also have the resources to help you pursue your claim in Washington civil court. If you have not contacted your lawyer already, schedule a consultation as soon as possible.