You have almost certainly encountered a liability waiver at one time or another. These waivers are problematic because, as many Dallas attorneys can tell you, they could theoretically allow all sorts of carelessness and injuries to be sustained without any consequences for those responsible. But sometimes you have to sign them to go on a tour, to ride a ride, to play a game, or in all other sorts of contexts. And if you've ever signed one of these waivers, you've likely asked yourself at least once: Will this thing really hold up if I get hurt?
Well, as with many things in the world of law, the answer is: Maybe. These waivers are analyzed on a case by case basis, and talking with a Dallas personal injury lawyer can help you figure out how the specific waiver you signed will be treated under Texas negligence law and contract law. Below you will find general information on how waivers operate in cases of a business' negligence.
WAIVER REQUIREMENTS – Fair Notice and Conspicuousness
The main issue at play is whether or not a business can have you—the customer—waive the consequences of the business' own negligence. The Supreme Court of Texas has explained that failure to give fair notice of a contract's terms “when they are imposed is unenforceable as a matter of law.” Storage Processors v. Reyes, 134 S.W.3d 190, 191 (Tex. 2004) (citing Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 509B10 (Tex. 1993)). A business asking you to waive the consequences of its negligence must meet certain requirements in doing so. Among those requirements are that it must give you fair notice, and it must do so conspicuously.
“One fair notice requirement, the express negligence doctrine, requires that ‘the intent of the parties must be specifically stated in the four corners of the contract.” Id. This means that the agreement must clearly and explicitly state that you are agreeing to waive your right to recover for the business' negligence. This must be stated clearly and explicitly, and it must not be clouded in ambiguous language. Part of the reason that this is required is that public policy is not in favor of businesses being able to disclaim liability for their careless acts and omissions without the patron or customer being aware.
There is an additional requirement that the terms by which you are presumably giving up your right to hold a company liable for negligence must be “conspicuous,” or in layman's terms: it can't be hidden in the fine print. The court explained, “Language may satisfy the conspicuousness requirement by appearing in larger type, contrasting colors, or otherwise calling attention to itself.” Id. (citing Littlefield v. Schaefer, 955 S.W.2d 272, 274B75 (Tex. 1997)). On the issue of conspicuousness, the Texas Legislature set out the following:
"Conspicuous," with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is "conspicuous" or not is a decision for the court. Conspicuous terms include the following:
- a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and
- language in the body of a record or display in larger type
than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.
Texas Business And Commerce Code § 1.201(b)(10).
Overall, the real issue is whether or not you, the customer, actually agreed to waive injuries and damages that occur as a result of the business' negligence, or whether the business just tried to make you engage in that agreement without really intending to.
Fair Notice and Conspicuousness will generally be a matter of law. This means that this issue will typically be decided by a judge, not a jury. The reality is that some of these waivers will likely be held up while others won't. There are, of course, myriad other issues that arise in these types of cases. Determining the viability of your case or claim is something with which a Dallas premise liability lawyer or negligence attorney can help you. Arguments over waivers of this nature can be very nuanced and will likely require some degree of legal research. Even where these waivers were not properly drafted, the prospective defendant will almost certainly fight the issue, so having an experienced Dallas injury attorney on your side to help you navigate these waters can be essential.
CALL GLENN LAW FIRM FOR A FREE CASE ANALYSIS
If you've sustained an injury as a result of another's negligence and would like to have your case evaluated, please fill out the submission form on this site or contact us at (817) 424-5999. One of our attorneys would be happy to speak with you and help you better understand your case.