Are Liability Waivers Enforceable in Florida?

You’ve definitely signed a liability waiver. Rather, you’ve signed lots of liability waivers. If you have children, you sign for them, too.

A liability waiver (also called a “release of liability”) is a legal document that you’re asked to sign by a company or organization to protect it from a lawsuit if you become injured. These are typical before participating in some sports or recreation activities, using rideshare apps, attending events at entertainment venues, or using certain types of premises. In essence, the company is providing notice that whatever activity you’re about to do could be hazardous and you might be injured—and it’s not their fault.

When you sign a liability waiver, you can’t file a lawsuit against the property owner or company for your injuries or damages suffered by participating in the activity. For example, if you take your child to one of the ever-popular trampoline gyms, you’ll be required to sign a liability waiver before they begin jumping. Trampoline play is dangerous and known to cause injuries, so the facility needs to ensure that if your child suffers a broken ankle, concussion, or other injury from regular play, you won’t hold them liable. 

But you might have heard the phrase, “You can’t sign away your right to sue.” People say this, and they often don’t read the fine print on these waivers because they don’t think they hold legal weight. Is that true?

Enforceability of Florida liability waivers

Each state handles these waivers a little differently. They are generally enforceable in Florida, but there are specific legal requirements and limitations that affect their enforceability. Ultimately, it comes down to a combination of treating the document as a contract and public policy considerations. 

There are several factors that affect whether a Florida liability waiver is enforceable:

• Clear and unambiguous language: Florida courts require that the language of the waiver be clear and understandable. The waiver must explicitly state the risks involved and clarify that the participant is releasing the other party from liability for negligence. If the language is vague, confusing, or buried in fine print, courts may find it unenforceable.
  
• Public policy considerations: A liability waiver cannot release a party from liability for gross negligence or intentional misconduct. Under Florida negligence law, courts will not enforce waivers that attempt to excuse conduct that goes beyond ordinary negligence, such as reckless or malicious behavior.
  
  Waivers that are against public policy (e.g., waivers that protect certain essential services or activities like medical care) are also unenforceable.
  
• Voluntary agreement: The waiver must be signed voluntarily, without any form of coercion or duress. The person signing the waiver must have the opportunity to understand the risks and the consequences of signing the document. If the person did not have a reasonable opportunity to negotiate the terms of the waiver or was pressured into signing it, a court may find it invalid.
  
  Bear in mind, you might not be able to negotiate signing the waiver for your child to play at a trampoline gym... but you always have the choice not to have them participate if you don’t feel comfortable signing the waiver according to the facility’s terms.
  
• Informed consent: A participant must be made aware of the risks associated with the activity. If a waiver fails to properly explain the potential dangers, it may be considered unenforceable.
  
  Waivers generally cover injuries that result from the activity's “inherent risks.” If an injury occurs due to something unrelated to the inherent risks, the waiver may not protect the business or organization from liability.
  
• Waivers signed for minors: A Florida parent or guardian may sign liability waivers on behalf of minors, but there are limitations. These waivers are enforceable for activities like sports or recreational events under certain circumstances, but Florida courts have ruled that a parent cannot waive a minor’s right to sue for gross negligence or intentional misconduct.
  
  Recent case law suggests that liability waivers signed by parents may be enforceable for commercial recreational activities but with limitations on scope.
  
• Conspicuousness: The waiver must be conspicuous, which means it should stand out in the document (e.g., in bold, capital letters, or separated from other contract terms). If the waiver is hidden in a long document without drawing attention to it, courts could rule that the signer was not properly informed.
  
• Bargaining power (ability to negotiate): A Florida court will consider whether there was a disparity in bargaining power between the parties. If the waiver was part of a “take-it-or-leave-it” agreement where the person signing had no other option, courts might examine the waiver's fairness more closely.
  
• Gross negligence: A Florida liability waiver cannot protect a party from liability for gross negligence or intentional wrongdoing. Gross negligence involves conduct that is much more reckless than ordinary negligence and demonstrates a disregard for the safety of others.
  
• Specificity: The waiver must be specific to the activity in question. For example, if a waiver is signed for a skydiving activity, it cannot be used to release the company from liability for injuries that occur outside of that activity.

A Florida liability waiver can be enforceable if it is clear, unambiguous, voluntarily signed, and not in violation of public policy. However, a waiver cannot release a party from liability for gross negligence or intentional misconduct. It is important that waivers are well-drafted, specific to the activity, and that participants fully understand the risks before signing.

If you’ve been injured after signing a liability waiver and you’re unsure about whether you can file a lawsuit, contact the team at Lorenzo & Lorenzo in Tampa, Florida. We’re always available to guide you through the legal process.