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Enforceability of Liability Waivers


            Amusement parks are popular summer activity, especially for families and kids. Although amusement parks are relatively safe, injuries still occur frequently. To protect themselves, amusement parks and other facilities will often require the guest to complete a waiver of liability before participating in the activity. If the participant is a minor, the amusement park or facility may require the parents to fill one out on behalf of the minor. Although liability waivers are destined to protect the amusement park or facility from being held liable for any injuries, are these waivers actually enforceable? Will a participant who gets injured from an activity after signing a liability waiver be able to recover damages?

            In Illinois, even if you sign a liability waiver, the contract may not be enforceable, thus allowing liability against the facility. The Court, in Meyer v. Naperville Manner, Inc., 262 Ill.App.3d 141 (2d Dist. 1994) held that a waiver of liability signed by a parent before the minor child’s cause of action accrued is ineffective. Illinois is not alone in applying this rule. It is the general rule that, in the absence of statutory or judicial authorization, a parent cannot waive, compromise, or release a minor child’s cause of action. See, e.g., Johnson v. New River Scenic Whitewater Tours, Inc., 313 F. Supp. 2d 621, 629-32 (S.D. W.Va. 2004) (finding that a parent could not waive liability on behalf of a minor child and also could not indemnify a third party against the parent’s minor child for liability for conduct that violated a safety statute such as the Whitewater Responsibility Act).

            In addition, Illinois courts interpret contracts to give effect to the intention of the parties as expressed in the language of the agreement or contract. Although Illinois does permit parties to be able to contract away liability for their own negligence, Hellweg v. Special Events Management (2010), the contract or waiver cannot violate public policy. To be against public policy, a waiver must include: (1) fraud; (2) willful and wanton negligence; (3) substantial disparity in the bargaining power; or (4) the presence of some other factor in the social relationship of the parties which militates against upholding the agreement. Garrison v. Combined Fitness Centre, Ltd. (1990).

            Exculpatory clauses are usually prevalent in a waiver liability contract. An exculpatory clause is a contract provision that relieves one party of liability if damages are caused during the execution of the contract. Some of these clauses may be broadly worded, but they must contain clear, explicit, and unequivocal language referencing the types of activities, circumstances, or situations that are meant to be covered. Id. The Court in Garrison found that “the plaintiff will be put on notice of the range of dangers for which he assumes the risk of injury, enabling him to minimize the risks by exercising a greater degree of caution.” Id. As such, if a patron is put on notice, the liability waiver may be enforceable.

            If you have recently attended an amusement park or facility of the like and was forced to sign a liability waiver and were injured there may still be an opportunity to recover damages; these waivers may not be enforceable. Contact us at 312-627-1650 for a free consultation and case review. 
Categories: personal injury