Frequently, when you participate in a sport or go to an amusement park, you will be asked to sign a liability waiver. If you are a parent, you probably get asked to sign waivers on behalf of your children. Liability waivers are used to prevent you from suing should something happen. However, it is important to understand that there are times when a waiver will not stop a lawsuit. In Pennsylvania, the Superior Court confirmed that if the conduct is grossly negligent and/or reckless, that the victim may sue regardless of a release. The case is Feleccia et al. v. Lackawanna College, 2017 PA Super 44.
Gross Negligence & Recklessness Explained
Liability waivers may help defendants when you are injured due to simple negligence, but in Pennsylvania, they will not protect a party who is grossly negligent or reckless and causes an injury. The difference between negligence and gross negligence/recklessness relates to mindset and type of conduct.
In negligence, you must be able to prove that:
- The person/business had a duty towards you
- They failed to uphold that duty and hurt you
- You were injured due to the conduct of the defendant
If you are driving and someone rear ends you because they were following too close for the conditions. That is traditional negligence.
If are driving and someone hits you because they were traveling 90 mph in a 30, they were likely grossly negligent and/or reckless. The fact that the person chose to drive so quickly or chose to get behind the wheel while drunk, shows a complete disregard for the safety of other people on the road.
In gross negligence or recklessness, you must be able to prove:
- All of the elements of negligence, and
- That their level of conduct showed a complete disregard for your safety
Don’t Assume a Liability Waiver Means no Compensation
If you are injured during an event for which you signed a liability waiver, don’t assume that you cannot seek compensation. If you are injured your lawyer will analyze whether you may be able to defeat the waiver due to reckless conduct by the business. While releases do provide protection in many cases, they will not stop a lawsuit when the conduct which caused you to be hurt was either intentional or reckless. For example, there are cases in which dangerously failing to maintain equipment, intentionally interfering with patrons, or other circumstances of gross neglect lead to lawsuits, during which the victim managed to defeat a signed liability waiver.
Hurt but Signed a Liability Waiver Don’t Give up!
Been injured after you signed a waiver? Do you think the cause of your injury was due to reckless behavior on the part of the business? If so, contact the litigators at Lowenthal & Abrams to discuss whether you have a claim.