Out of Luck Because I Signed a Waiver?
You signed a waiver for your child to participate in an activity, but your youngster suffered an injury while participating. Are you out of luck when it comes to seeking compensation from the organization that put on the event? Maybe, but maybe not.
A waiver is required to be signed nowadays as a condition to participating in just about every organized activity. The purpose of the waiver is to protect an entity from liability for injuries that may occur during the activity, instead, forcing participants to assume the risk.
Although a waiver can be effective to shield an organization from liability for foreseeable injuries, especially when the scope of the waiver is clear and articulate, an entity may still be liable irrespective of the waiver when it comes to unforeseeable harm. For example, you would expect that your child may get an elbow to the face in a basketball scrimmage or a sprained ankle in a soccer match, but you would not expect to have an improperly set up basketball hoop or soccer goal collapse onto your child causing injury during these events. These latter circumstances are unforeseeable, and the entity would very likely be found responsible despite a signed waiver if you could show that the duty to keep your child safe from harm was breached by someone acting on behalf of the entity.
You may wonder what degree of accountability is owed to your child as you complete registrations for various activities. The short answer is that every person owes a duty of reasonable care to another person. This duty of reasonable care is heightened when it comes to children, requiring that adults be more careful when dealing with children than when dealing with other adults. This makes sense since children, having less life experience than adults, rely on the judgment and guidance of adults. When a duty of reasonable care is breached and injury results, the breaching party is liable for negligence.
In California, a waiver can protect an entity from liability for ordinary negligence, but not gross negligence. Ordinary negligence amounts to a careless mistake or inattention which results in injury while gross negligence exists when deliberate or reckless disregard for safety causes the injury. This means that if the person in charge of the activity or event where your child was harmed disregarded your child’s safety by, for example, ignoring instructions on how to properly set up equipment, or directing inexperienced staff to set up the equipment, the entity would very likely be held responsible for the injuries your child suffered despite any waiver you signed.
You should also be aware that a waiver will not be enforceable if its terms are unclear, unconscionable, or illegal, nor will it be enforceable if you signed it under duress or while being deceived. Bottom line – do not assume you are out of luck simply because you signed a waiver. Many elements must be met for the waiver to be deemed enforceable. The fact that a waiver is in place does not automatically preclude you from seeking relief.
You may feel hesitant to pursue a claim against the organization responsible for causing your child’s injury, especially if your nature is non-adversarial and you are still emotional about the ordeal. However, if your child could have been spared harm and there is a chance you can get around the waiver you signed, you must realize there is likely an insurance policy designated for the exact purpose of providing compensation to injured individuals like your child.
Be sure to explore with legal counsel the grounds for pursuing a claim on your child’s behalf even if you signed a waiver.
Remember, your child is at the mercy of adult judgment and guidance, so spare no effort in determining whether a viable claim exists. Get in touch with a Walton Law attorney who specializes in this subject area. Contact us today to learn more about your case.