Some activities are inherently risky, and often patrons are required to sign a waiver of liability before participating. However, the scope of the waiver may be limited by law, and specific portions could be found invalid by a court if they are challenged. In a recent case, a woman sued a hot air ballooning company after being injured by a balloon. She was waiting in line to ride in the hot air balloon when the balloon’s basket struck and injured her. The woman sued the ballooning company for negligence. Originally, the court found that her claims were barred because she signed a waiver of liability before riding in the hot air balloon. However, on appeal, the state’s supreme court held that the waiver of liability violated public policy and was unenforceable.
The court stated that generally a waiver will be invalid if it contains misrepresentations, if it is too broad, or if it is ambiguous. In this case, the woman signed a waiver to ride the hot air balloon while she was waiting in line. The court found that the waiver the woman signed to go in the balloon was unenforceable because it was overly broad and all-inclusive.
The waiver exempted the company from liability for “all risks of any and every kind” arising from participation in hot air balloon activities with the company. The court noted that it was not clear whether or not the woman would have expected that risks resulting from standing in line would be covered by the waiver, particularly since she did not have to return the waiver prior to getting in line. She also did not have an opportunity to bargain over or negotiate the terms contained in the waiver. For these reasons, the court found that the waiver was unenforceable.
Waivers of Liability in Illinois
A waiver of liability, or an “exculpatory clause” in a contract, allows a party to avoid liability for its own negligence. Considering the public interest, Illinois law construes waivers in favor of the party disadvantaged by the waiver.
Generally, courts do not want to interfere with the ability of two parties to contract with one another. However, even when a person has signed a contract generally exempting the other party from liability, waivers can be deemed invalid if they violate public policy. For example, in general an exculpatory clause must be clear, explicit, and unequivocal. It also should reference the specific types of activities and circumstances encompassed by the waiver. That is, the danger waived should be “reasonably contemplated” by the plaintiff. If the danger falls within those that should be expected, the person signing the waiver “assumes the risk” of that danger. However, if the danger lies outside of the scope of the dangers reasonably contemplated by the exculpatory clause, the waiver may not apply. In addition to violations of public policy, there are other exceptions to the validity of waivers. In order to find out more about a waiver, you should speak with an experienced attorney.
Have You Been Injured After Signing a Contract or Waiver?
If you have been injured after signing a waiver of liability or a contract with an exculpatory clause, you may still be able to sue the other party for their negligence. There are exceptions to the validity of waivers, including when an exculpatory clause violates public policy. The Illinois personal injury lawyers at Moll Law Group have represented people who have been involved in devastating accidents and families who have lost loved ones. To learn more, call us at 312-462-1700 or fill out our consultation form to set up a free initial consultation.
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Spring 2016 Moll Law Group College Scholarship Winner is . . ., Illinois Injury Lawyer Blog, April 18, 2016.
Evidence of Lack of Insurance Determined Irrelevant in Car Accident Claim, Illinois Injury Lawyer Blog, April 30, 2016.
Court Considers Causation Issues in Defective Gun Case, Illinois Injury Lawyer Blog, March 8, 2016.