Liability waivers “release” a business or person from liability for your injuries, but whether they can actually be enforced is a second legal question that comes up at the time of injury. However, Louisiana law is very clear about most liability waivers.
Unlike most other states, Louisiana does not allow pre-injury liability waivers to be enforced in injury cases. Usually, other states allow you to contract away your right to sue by signing a liability waiver, as long as its terms are clear, the agreement was voluntary, and it is not against public policy. Waivers dealing with personal injury are nullified under Louisiana law, making them unenforceable.
For help with an injury case, call the New Orleans personal injury lawyers at Schoenfeld Law Firm today at (504) 688-7760.
When Are Liability Waivers Used?
The goal of a waiver is for a company to stop a client or customer from being able to sue them. Often, they are tied to ongoing services, access to facilities, or dangerous activities, where the cost of defending against dozens or even hundreds or thousands of lawsuits would be difficult.
These are common in many of these situations and facilities:
- Gyms
- Pools
- Recreational clubs and centers
- Extreme sports and similar activities (off-roading, skydiving, SCUBA)
- Equipment or vehicle rentals related to recreational activities
- Camps and sports for children
- Party equipment rentals (e.g., trampolines, bounce houses).
Liability waivers may also be included as signage on the premises or in the terms and conditions of a ticket for a ride, event, theme park, etc.
Does Louisiana Law Allow Liability Waivers?
The law doesn’t stop you from signing or asking someone to sign a waiver in Louisiana, but it does stop the waivers from being enforceable. More specifically, LSA-C.C. 2004 specifically says that clauses in contracts that exclude or limit liability in advance are “null.”
This means that you can technically put a waiver in a contract and sign it, but it is nullified by law. That makes it unenforceable and treats it as if that whole clause in the agreement is crossed out.
When Nullification Applies
This law nullifies liability waivers for all three of these situations:
- Intentional conduct
- ”Gross fault” – i.e., gross negligence
- Physical injury
Many states have rules against waiving liability for intentional or gross misconduct, but a total bar on injury waivers is only found in Louisiana and perhaps one or two other states.
Pre-Injury vs. Post-Injury
This law only applies to waivers signed before the injury. If you sign a waiver after the injury, it will block you from suing. Do not sign anything or give up your right to sue until you speak with our New Orleans personal injury lawyers.
Should I Sign a Waiver?
Waivers may be required before you can be given access to something. In most cases, they won’t be enforceable when it comes to personal injury, so signing it or not signing it shouldn’t make a legal difference on your right to sue. However, there are some potential hangups.
Non-Injury Waivers
Waivers dealing with other conduct – such as accidental property damage – might be enforceable. This could mean that you can sue for injury, but not damage to your property that occurs in the same accident.
Forum/Law Selection
Waivers, especially for companies that operate across state lines, might have a “forum selection” clause that says where legal challenges concerning the services need to be brought. They may also dictate that the agreement is governed by the laws of another state.
While signing the agreement in Louisiana might make you think that Louisiana’s law nullifies the waiver, that might not be how other state courts interpret this conflict of laws.
Arbitration Clauses
If the company cannot block you from suing, they may try to limit your rights by including an arbitration clause along with the waiver. While the waiver might not be effective, the arbitration clause might still block you from suing and make you go to arbitration instead of court.
Arbitration clauses are often blocked in insurance contracts, but not necessarily in injury cases.
FAQs for Injury Cases Involving Waivers of Liability in New Orleans
What is a “Waiver” vs. a “Release of Liability” vs. “Indemnification Agreement”?
These phrases are often used interchangeably to refer to the same thing: a document where you agree to give up your right to sue. While these legal terms largely overlap, there may be some technical differences that apply differently in different situations.
When it comes to waivers or releases, these words all largely mean you are giving up any right to sue for injury, which isn’t allowed in Louisiana.
Can I Sue if I Signed a Waiver?
Pre-injury liability waivers are generally unenforceable under Louisiana law, so you may still be able to sue. However, there may be other limits on your right to sue, so always check with a lawyer before signing a waiver or other agreements (such as arbitration or forum selection agreements).
What Factors Make Waivers Enforceable?
In Louisiana, all injury waivers are nullified.
However, other states will often enforce liability waivers in injury cases where the agreement’s language is clear, the clause isn’t hidden within other text, signing the agreement was voluntary, and the waiver doesn’t conflict with public policy.
Can I Be Forced to Sign a Waiver?
No one can physically coerce you or threaten you with violence to make you sign anything. If they did, it would not be valid.
However, companies can deny you access to their services or facilities until you sign their waiver (barring some exceptions the public needs access to, like hospitals). However, you always have the right to say no, to attempt to modify or renegotiate the agreement, or to call a lawyer before signing.
Can I Be Denied Service if I Refuse a Waiver?
Depending on the service or facility you are trying to access, you may be denied service if you refuse a waiver. For example, a children’s camp or a skydiving excursion that uses a waiver will probably instruct its staff not to let anyone in without signing a waiver first.
In many cases, the injury clause of the waiver is unenforceable anyway, but other aspects of the agreement might still be enforceable.
Are Waivers Mandatory?
You may be told by a company that the waiver is mandatory. No law requires companies to use a waiver; it is usually company policy or advice from the company’s legal department that requires the employees to demand you sign a waiver, not the law.
Call Our Personal Injury Attorneys in New Orleans Today
For a free case review on your potential case, call the Lafayette, LA personal injury lawyers at Schoenfeld Law Firm at (504) 688-7760.
