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Can I still sue if I signed a liability waiver?

On Behalf of | Sep 12, 2020 | Personal Injury

If you have recently suffered an injury in Illinois due to someone else’s negligence, you can pursue damages to compensate for your suffering. Illinois subscribes to modified comparative negligence, meaning that you may still receive damages even if you were partially at fault, so long as your comparative fault is less than 50%.

But with the near ubiquity of waivers for activities, you may believe that you signed away eligibility for compensation. While enforceable for some injuries, these waivers do not relieve parties of all responsibility, and you may still be able to receive compensation — even if you signed a release.

What waivers can do

Illinois statutes do not clearly address liability waivers for personal injury claims. Case law has since established that they are legally valid in Illinois but that the law does not favor them and may disregard them under certain circumstances.

Legally enforceable liability waivers should include language that clearly delineates what activities and situations signing parties agree to claim liability for. In other words, waivers cannot relieve defendants from all liability, and courts will prefer contracts that are specific and clear in nature.

Regardless of the contract language, waivers can only protect defendants from injuries that meet certain criteria. The most essential criterion for determining whether a release is enforceable is the foreseeability of the injury. In other words, certain activities come with inherent risks. Waivers can release companies from liability for expected risks. But they may not protect a company from unexpected injuries. For example, a release may waive liability for a fall in a rock climbing gym but not for an unexpected dog attack on the premises.

What waivers cannot do

Waivers do not release defendants from liability for willful or wanton negligence, and they cannot release liability for violations to law or public policy. They also do not remove a party’s responsibility to exercise due care to maintain safe premises. For example, a waiver may protect a trampoline park from liability for common injuries, but the company is still responsible to maintain equipment to safety standards and may be liable if the injury was due to damaged or worn equipment.

Ultimately, the court will decide whether a waiver applies for each individual case.