Can I still sue for a personal injury claim in Georgia if I signed a waiver? This is a common question that people have if they have been injured after they signed a waiver. The good news is that all hope is not lost if you signed a waiver. You can still potentially recover damages for your injuries, but a waiver does make things more complicated.
What is a Waiver?
A waiver is basically a document a person signs that says the person signing the document waives his or her right to pursue a claim or hold somebody else responsible for their injuries or other damages. Waivers can come in a variety of different types. Waivers are sometimes referred to as exculpatory clauses, hold harmless agreements, indemnity agreements, and pre-injury releases.
The language in a waiver is important because it helps determine what is being waived and whether the waiver is enforceable in the first place. Many waivers contain very broad language that attempts to exculpate the wrongdoer from any and all responsibility for their conduct.
Where are Waivers Used?
Businesses are increasingly using waivers in an attempt to avoid any responsibility for their wrongful conduct. Waivers are commonly encountered at trampoline parks, amusement parks, theme parks, zip lines, canopy tours, go kart rides, sports leagues, and sporting and recreational events.
Are Waivers Enforceable?
The first question that must be answered anytime an injured person has signed a waiver is whether the waiver is enforceable. There are a number of Georgia cases that discuss the circumstances in which a waiver is unenforceable. Generally speaking, the parties have the freedom of contract and can waive their rights. However, a waiver cannot violate public policy. A waiver may violate public policy if there is a statute that says a waiver cannot be used. Or there might be Georgia case law that says a certain type of waiver violates public policy because it jeopardizes the public interest.
A waiver may be unenforceable because of the subject matter it relates to. Examples of waivers that Georgia courts have held are unenforceable include a waiver in an agreement for the construction or maintenance of a building. Waivers in lease agreements that attempt to shield a landlord from any liability are also unenforceable. Georgia courts have also refused to enforce waivers and exculpatory agreements for medical professionals.
Even if a waiver does not violate public policy, the language of the agreement still must be analyzed. A waiver must be clear and unambiguous. If the language is not prominent, clear, and unambiguous, then a court may decline to enforce the waiver.
Waivers and Gross Negligence
What if the waiver does not violate public policy and the language is clear and umambiguous? Does this mean the courthouse doors are locked when you try to seek justice for your injuries? The short answer is no. Regardless of whether you have signed an enforceable waiver, a person or business can still be held liable if their conduct amounted to gross negligence or willful or wanton misconduct. These standards are higher than the ordinary negligence standard that normally applies in an injury case, but it is not an impossible standard to meet.
What Should You Do If You Are Injured But You Signed a Waiver?
If you are injured in Georgia, but you signed a waiver that says you waive your right to sue, you should immediately contact an experienced Georgia personal injury attorney. In any injury case, it is always a good idea to consult with a personal injury attorney. If you signed a waiver, your case will likely be more complicated, which makes it even more important for you to contact an injury attorney as soon as possible.
If you have questions about a waiver you signed before sustaining an injury in Georgia, call the Atlanta, Georgia personal injury attorneys at Brogdon Champion, LLC for a free consultation.