Many activities—such as skiing, bungee jumping, sending children on field trips, and axe throwing—require you to sign a waiver or release. If you’ve signed a waiver, you may wonder what would happen if you get injured.
Can you sue for personal injury damages if you signed a waiver? In Illinois, the answer is typical “yes.”
Waivers and Release Clauses – Often Useless in Illinois
The truth is waivers and release clauses—documents in which you promise to hold the other party harmless if you get injured—are often unenforceable in Illinois. The main reason for this is courts in the state usually rule that businesses be held accountable for their own negligence. If they could simply waive that responsibility away, it would be unfair to everyone who uses their services.
Waivers must meet specific requirements in order to be considered enforceable in Illinois. Particularly, they must be clear, concise, and in line with public policy. The situation and risks should be clearly outlined, and the two parties must be capable of upholding the agreement.
Recovering Damages After Signing a Waiver
In Illinois, courts often rule in favor of injured plaintiffs, even if they signed a waiver. That said, the following areas will need to be considered.
Risk Vs. Negligence
First, it’s worth noting that there’s a difference between inherent risk and negligence. If you’re engaging in an activity that’s inherently risky, it’s only fair for you to assume the risk of engaging in those activities. You indicate that by signing the waiver. For instance, if you go to an axe-throwing venue and hurt yourself with careless throwing techniques, you’d be responsible for your own injuries.
However, the waiver doesn’t preclude the other party’s responsibility. In our axe-throwing example, if you are injured because an axe head suddenly flew off its handle, the business would likely be held responsible, even if you signed a waiver.
Clarity
To be enforceable, waivers and releases also need to be clearly and concisely written. If any terms of the agreement are hidden in a block of convoluted text, it’s not likely to be enforceable.
In addition, these agreements must be explicit. If it’s too short to properly outline the potential risks involved, then it’s also likely to be thrown out.
Bargaining Power
A final consideration—and one that’s highly important where waivers are concerned—is whether there’s an imbalance in bargaining power between the agreeing parties. An imbalance in power may occur if you had no sound option other than signing the waiver, either because you had no other viable options or were under some form of compulsion to sign.
For instance, waivers included in employment contracts may not be enforceable since the employee is under economic compulsion. Likewise, many public services can’t benefit from release forms since their customers don’t have viable alternative options. In any case, where there’s a disparity of bargaining power, most courts are likely to throw the waiver out.
First Steps After Injury
While Illinois tends to rule in favor of injured plaintiffs in spite of the existence of a waiver, winning the case isn’t a guarantee. You’d still need to prove negligence on the defendant’s part, and that’s where a personal injury attorney comes in. If you’ve been injured due to another party’s negligence, contact Hart David Carson LLP today.