A Question For the Lawyers: Can Negligence Be Waived?

[DoubleDown]

I have a question out of curiosity I'm hoping the lawyers might be able to help with. Last week, my wife and I spent a few days at some natural hot springs. They were really nice, we had a great time. Before we went in, the establishment had a waiver form for us to sign releasing the establishment from any liability in case we were harmed (drowned, had a heart attack from the heat, etc.). It also gave us warnings that water activities are potentially dangerous (it wasn't dangerous by the way, it was 5 ft. of water at body temperature for relaxing in, but that's not the point).

Here's the part that was interesting to me: The waiver form had a specific clause that said we could not seek damages from the establishment under any circumstances, even if there was gross negligence on their part. I crossed that part out with a pen and signed the form, and fortunately the desk clerk did not notice or didn't raise a fuss about me crossing it out. We had a nice time, and left without incident.

My question is, even if I had not crossed out that section before signing, can an entity really limit their liability if they are found to be grossly negligent? Would a court say, "Sorry, you signed the release, case dismissed." Or would a court say that the establishment can't be released from liability if they're found to be grossly negligent, even though the release was signed? I'm hoping it's the latter!

To give an outrageous example, if there was poison in the water that killed or permanently maimed one of us, and we could prove beyond any doubt that the place knew about it and did nothing, would we really have been unlikely to obtain damages if we had not crossed out that part? Or if a drunk employee drove their car right into the pool, crushing me?

[TN_Steve]

DoubleDown,

As with so many legal issues in the area of torts, it depends on the state in which the resort was located.

Negligence can be waived in nearly every state; theory is that you can buy your own insurance, rather than making the vendor buy it.  (and, insurance can be very expensive for the vendor in some cases.  We are scuba divers, and our son is into jumping out of airplanes--two areas in which waivers are always presented for signature)

Whether such a waiver can encompass gross negligence depends on which state you are in (and many states no longer even recognize gross negligence as a separate category).

Outrageous/reckless/intentional misconduct, which is what your last paragraph is dealing with, rarely can be waived away.  (I would say never, but I haven't looked at every state.)

Usual Disclaimer: if you want to be certain, you should hire lawyer in the pertinent jurisdiction, etc. etc.  :-)

[dragoncar]

DoubleDown,

As with so many legal issues in the area of torts, it depends on the state in which the resort was located.

Negligence can be waived in nearly every state; theory is that you can buy your own insurance, rather than making the vendor buy it.  (and, insurance can be very expensive for the vendor in some cases.  We are scuba divers, and our son is into jumping out of airplanes--two areas in which waivers are always presented for signature)

Whether such a waiver can encompass gross negligence depends on which state you are in (and many states no longer even recognize gross negligence as a separate category).

Outrageous/reckless/intentional misconduct, which is what your last paragraph is dealing with, rarely can be waived away.  (I would say never, but I haven't looked at every state.)

Usual Disclaimer: if you want to be certain, you should hire lawyer in the pertinent jurisdiction, etc. etc.  :-)

I don't know either, but even if negligence can be waived, there's the issue of validity in such a contract of adhesion (like after you've already paid for everything and flew 500 miles, they give you a standard form that you cannot negotiate).  I think there are cases on both sides of this depending on situation and jurisdiction.

[TN_Steve]

I don't know either, but even if negligence can be waived, there's the issue of validity in such a contract of adhesion (like after you've already paid for everything and flew 500 miles, they give you a standard form that you cannot negotiate).  I think there are cases on both sides of this depending on situation and jurisdiction.

True, dragoncar.

I researched it fairly well on the negligence issue several years ago with respect to diving.  General rule was that it will be enforced in most US jurisdictions--especially if you are aware in advance that it is going to be presented.  Plus, in both scuba and sky diving, it is customary.  Signing one to dip into a natural hot spring strikes me as more out of the ordinary.   :-)  Nonetheless, as a consumer, it is safest to assume that it will be enforced and keep your fingers crossed that you won't have need to look into it.

[DoubleDown]

Thanks for the answers. Yeah, I suspected it was probably more complicated and jurisdiction-based than I hoped. I don't like the idea of companies getting people to routinely waive their rights, especially if they're found to be negligent, so naively I'd hoped there were some legal protections against this kind of practice. Like, a judge would just toss the contract out calling it illegal and outrageous. But of course, this should surprise no one that  companies do this. As I was reading the one-page contract at the spa, several people in line just walked up and signed the form without even reading.

Another troubling development is the advent of the electronic, 50-page "Terms and Conditions" that people are presented when signing up for a simple internet service or something. I never read that stuff, of course, and likely have signed over my first-born child, rights for the company to surreptitiously turn on my webcam, and to take $50/month from my bank account forever -- or $100/month if I complain about it.

[dragoncar]

Thanks for the answers. Yeah, I suspected it was probably more complicated and jurisdiction-based than I hoped. I don't like the idea of companies getting people to routinely waive their rights, especially if they're found to be negligent, so naively I'd hoped there were some legal protections against this kind of practice. Like, a judge would just toss the contract out calling it illegal and outrageous. But of course, this should surprise no one that  companies do this. As I was reading the one-page contract at the spa, several people in line just walked up and signed the form without even reading.

Another troubling development is the advent of the electronic, 50-page "Terms and Conditions" that people are presented when signing up for a simple internet service or something. I never read that stuff, of course, and likely have signed over my first-born child, rights for the company to surreptitiously turn on my webcam, and to take $50/month from my bank account forever -- or $100/month if I complain about it.

You can always try crossing out stuff you don't like.  Most hourly staff don't give two craps about the details, they just know they need a form from you.  Hand it to them in a stack of 10, and they might not notice. 

Disclaimer: this isn't legal advice, just observation, and I guess could be fraud but I personally consider that a stretch

[DoubleDown]

Thanks for the answers. Yeah, I suspected it was probably more complicated and jurisdiction-based than I hoped. I don't like the idea of companies getting people to routinely waive their rights, especially if they're found to be negligent, so naively I'd hoped there were some legal protections against this kind of practice. Like, a judge would just toss the contract out calling it illegal and outrageous. But of course, this should surprise no one that  companies do this. As I was reading the one-page contract at the spa, several people in line just walked up and signed the form without even reading.

Another troubling development is the advent of the electronic, 50-page "Terms and Conditions" that people are presented when signing up for a simple internet service or something. I never read that stuff, of course, and likely have signed over my first-born child, rights for the company to surreptitiously turn on my webcam, and to take $50/month from my bank account forever -- or $100/month if I complain about it.

You can always try crossing out stuff you don't like.  Most hourly staff don't give two craps about the details, they just know they need a form from you.  Hand it to them in a stack of 10, and they might not notice. 

Disclaimer: this isn't legal advice, just observation, and I guess could be fraud but I personally consider that a stretch

Yeah, if you read above that's exactly what I did. I think more people should be aware of the ability to cross stuff out they don't like in contracts, but it seems most just sign to be done with it. I've only been questioned or called on it a couple of times -- they sometimes raise a small stink and then let it pass, but I'm not gonna just sign some contract the company's lawyers came up with that tosses all your rights away and makes it impossible for you to be on even footing at least.

One thing I nearly always cross out is the section waiving your rights to a trial and forcing you into binding arbitration (usually with an arbitrator of their choosing). What a crock of sh**.

[dragoncar]

Thanks for the answers. Yeah, I suspected it was probably more complicated and jurisdiction-based than I hoped. I don't like the idea of companies getting people to routinely waive their rights, especially if they're found to be negligent, so naively I'd hoped there were some legal protections against this kind of practice. Like, a judge would just toss the contract out calling it illegal and outrageous. But of course, this should surprise no one that  companies do this. As I was reading the one-page contract at the spa, several people in line just walked up and signed the form without even reading.

Another troubling development is the advent of the electronic, 50-page "Terms and Conditions" that people are presented when signing up for a simple internet service or something. I never read that stuff, of course, and likely have signed over my first-born child, rights for the company to surreptitiously turn on my webcam, and to take $50/month from my bank account forever -- or $100/month if I complain about it.

You can always try crossing out stuff you don't like.  Most hourly staff don't give two craps about the details, they just know they need a form from you.  Hand it to them in a stack of 10, and they might not notice. 

Disclaimer: this isn't legal advice, just observation, and I guess could be fraud but I personally consider that a stretch

Yeah, if you read above that's exactly what I did. I think more people should be aware of the ability to cross stuff out they don't like in contracts, but it seems most just sign to be done with it. I've only been questioned or called on it a couple of times -- they sometimes raise a small stink and then let it pass, but I'm not gonna just sign some contract the company's lawyers came up with that tosses all your rights away and makes it impossible for you to be on even footing at least.

One thing I nearly always cross out is the section waiving your rights to a trial and forcing you into binding arbitration (usually with an arbitrator of their choosing). What a crock of sh**.

Doh, I swear I read your post the first time around, but just didn't remember that part.  Might as well try crossing out bogus terms.  The worst they can do is insist you sign an unmodified version.

You could also try these gems:




https://web.archive.org/web/20080209094835/http://www.zug.com/pranks/credit/

[randymarsh]

Another troubling development is the advent of the electronic, 50-page "Terms and Conditions" that people are presented when signing up for a simple internet service or something. I never read that stuff, of course, and likely have signed over my first-born child, rights for the company to surreptitiously turn on my webcam, and to take $50/month from my bank account forever -- or $100/month if I complain about it.

I think I've heard of a few cases where judges have thrown those out because they're simply so long and drawn out that no one is actually aware of what they're agreeing to. South Park had a good episode related to haha. "You didn't READ the agreement?!?"