By: Christopher Myatt

Liability waivers are commonplace in modern society. We sign them as part of various agreements and before engaging in all sorts of activities. Nearly always, we sign away these substantive rights without giving it a moment’s thought. Moreover, summer camp operators, trampoline parks, and countless others ask parents to waive their children’s rights in the event of negligence or other wrongdoing that results in personal injury. Typically, parents sign without any hesitation.

Are these ubiquitous liability waivers enforceable if the unexpected happens? As usual, it depends.

A general liability waiver signed by an adult as part of a membership agreement or before engaging in some sort of potentially-dangerous activity (e.g., indoor rock climbing) is typically enforceable against that adult under normal circumstances. In other words, it is a good practice for a business operating in this and similar spaces to require adults to sign a liability waiver. If the unexpected occurs and the customer sustains an injury as the result of the company’s negligence, the liability waiver will serve as a powerful affirmative defense to that lawsuit. Alas, the waiver cannot prevent a lawsuit, but it can and most often does serve as the basis for the Court’s dismissal of a lawsuit.

One exception to the general principle that liability waivers are enforceable against adults concerns intentional or reckless conduct. In short, one cannot use a waiver to avoid liability for harm caused by conduct that is “worse” than negligence. Liability for intentional, reckless, or grossly negligent conduct cannot be waived beforehand. Because of this exception to the general rule, plaintiff’s attorneys will often seek to exaggerate the defendant’s misconduct in order to avoid a liability waiver signed by their client.

Recently, this author defended a fitness center sued by a member who sustained a badly broken leg while participating in a Boot Camp class. The gym member signed a liability waiver as part of the membership agreement. Knowing this, her attorney sought to characterize the defendant’s conduct as “gross negligence,” defined in Tennessee as an “utter lack of concern for the safety of others.” The Court reviewed the witnesses’ sworn testimony and found that there was no basis whatsoever that the fitness center’s employees were grossly negligent. Further, the Court found that the liability waiver, also called an exculpatory clause, was enforceable to bar any claim for “mere” negligence. The Court dismissed the case.

What about kids?

In 2017, the Tennessee Court of Appeals discussed the enforceability of liability waivers against minors. In that case, known as Blackwell, a minor was injured while playing at the defendant’s indoor trampoline park. The defendant raised the liability waiver, signed by the minor’s mother, as a defense to the claim. Interestingly, after noting that the waiver would certainly be enforceable against an adult, the appellate court held that “the law in Tennessee states that parents may not bind their minor children to pre-injury waivers of liability, releases, or indemnity agreements….” This principle is derived from the general rule that minors cannot enter into an enforceable contract. Nevertheless, the exculpatory clause did serve to waive the mother’s portion of her child’s claim, namely the medical expenses incurred by the mother on her child’s behalf. The child was free to pursue his claim for non-economic damages, such as pain and suffering, since those damages “belong” to the child. The Court concluded: “to allow the child in this case to claim Mother’s damages despite the fact that she executed a valid release and indemnity agreement would be to frustrate this state’s public policy of enforcing clear and unambiguous exculpatory agreements entered into freely by adults.”

The bottom line is this: clear and unambiguous liability waivers executed by adults are enforceable and will serve as a release of liability for negligent conduct. Liability waivers will not, however, shield one from liability for intentional, reckless, or grossly negligent conduct, nor will such waivers be enforceable against a child.

Christopher Myatt is a partner in Spicer Rudstrom’s Memphis office, focusing on litigation throughout Tennessee and Mississippi. He has more than 10 years of experience handling premises liability cases. His practice is also concentrated in business and commercial litigation, product liability, governmental tort liability, insurance coverage, insurance defense and workers’ compensation.