We've all been there: We're out with friends and want to do something, but before we can, there's someone behind a desk asking us to sign a liability waiver. Maybe it's at a concert, or the paintball field, or any number of potentially dangerous activities, but we don't give that piece of paper a second thought until we actually get hurt. Then, we invariably ask, "Can I still sue in Texas if I signed a liability waiver?"

Answer: Yes, you can most likely sue if you signed a liability waiver. Texas generally enforces those, but waivers may be invalid if they do not comply with fair notice requirements like express negligence and conspicuousness.

Many folks may not be familiar with those terms, so let's break down what they mean a little.

What Is a Liability Waiver?

A liability waiver is an agreement for one person not to sue another person. Why would somebody sign away their right to sue? The simple answer is that many people like to do dangerous things for fun, but they usually have to promise not to involve the courts if things go wrong.

For instance, many parents take their children to indoor play areas that have all sort of slides, climbing obstacles, and other pieces of equipment. That same equipment also poses dangers to children. In most instances, the owner of the play area asks parents to sign a waiver as a condition of letting the children play on the equipment. The idea behind this deal is that parents get to let their children play in an area that might be a little dangerous, while the owner of the play area doesn't have to worry about getting sued when little Johnny breaks something after flinging himself face first down a slide.

Here's a list of other places where it's common for people to sign wavers:

• Gyms
• Sporting events
• Concerts
• Outdoor activities like:
  • Skydiving
  • Off-road driving
  • Racing
  • Rock-climbing
  • Zip lines
  • Ski resorts
• Amusement and theme parks
• School trips

There are two schools of thought when it comes to liability waivers; one camp thinks they're not worth the paper they're printed on, while the other believes that since they signed away their right to sue, that's the end of it. Texas courts actually have a more nuanced view of liability waivers. They're open to enforcing them, but only if the waiver is properly written (Fun fact: They rarely are).

For a Texas court to enforce a liability waiver, they expect it to comply with fair notice requirements. But what does that mean?

What is Fair Notice?

To be perfectly blunt, when someone asks you to sign a liability waiver, their primary motivation is to cover their backside. They ask the signer to agree to some version of "I'm going to do something in a dangerous place, but you told me it's dangerous, so I promise not to sue you if I get hurt there." The problem is the person offering the dangerous service is in a much better position to know the risks than the person signing the waiver. For that reason, the Texas Supreme Court adopted fair notice rules in 1987 to balance things out.

Fair notice basically means giving someone enough information about something so they can make an informed decision. The information can be conveyed many ways, but it must be clear enough for the intended audience to understand it. The broader and more confusing a contract or notice's language, and the harder it is to see any specific warnings among the more general information, the less likely it is that the signer will really "get" what they're agreeing to. Texas law is somewhat sympathetic to that, so a liability waiver is only enforceable if it meets two fair notice requirements: express negligence and conspicuousness.

Express Negligence

By signing a waiver, people are generally agreeing that a business is not responsible for injuries caused by its own negligence. However, under the express negligence doctrine, the person who created the waiver has to be very clear about what it's for. For example, the waiver must be:

• Worded in clear, simple language that the reader can understand;
• Prominently displayed, not hidden in fine print or jargon; and
• Not seeking to waive liability for intentional acts, gross negligence, or willful misconduct.

Basically, express negligence restrictions prevent those seeking immunity from a lawsuit from playing "gotcha" by making their contract so complicated that people miss important details. It's not enough to speak plainly, though—they also have to make the waiver highly visible within the document.

Conspicuousness

Conspicuousness refers to the visibility and clarity of a liability waiver. Here's what the law says:

[A waiver must be] so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it.”

Tex. Bus. & Com. Code. Ann. § 1.201(b)(10)

Basically, a business needs to set its waiver apart from anything else it needs a customer to read. Some of the ways to do that include:

• Changing the size, color, or format (bold, italicized, etc) of the font used in the waiver;
• Adjusting the location of the waiver on the form (or putting it on a separate one); and
• Adding headings or graphics near the waiver to catch the reader's eye.

In other words, anyone writing a waived liability clause can't hide it in fine print and hope someone will unknowingly skim past it. If it's not conspicuous, then even a signed waiver may not meet fair notice requirements.

Example

Bobby signs up for a few rock climbing sessions at an indoor climbing gym in Texas. During registration, he also has to to sign a membership agreement. Several pages in, written in a plain font that looks just like the rest of the agreement, is the following clause:

"The participant hereby agrees to release and discharge the gym, its employees, and affiliates from any and all claims, including those arising from the gym's own negligence, related to any injuries sustained while using gym facilities."

Bobby, a novice climber, later falls off a climbing wall and is injured because the gym's equipment is damaged and poorly maintained. When Bobby files an injury lawsuit, the gym shows the court the sign waiver as a defense.

Would that defense work? I doubt it. In the example, the liability waiver language doesn't stand out and could easily be missed—which means that conspicuousness requirements may not be met. The waiver also tries to give the gym blanket liability in any case of injury, including that caused by the gym's negligence (like having damaged equipment). It's unlikely that such language would pass the sniff test for express negligence.

I'm not here to teach businesses how to write stronger protection clauses into their contracts. The above example is to point out that even if someone signs a form with that language in it, they might still have standing to sue if they're hurt doing whatever they showed up to do.

So Can I Still Sue if I Signed a Liability Waiver?

If you were hurt while participating in an activity or using a service, but you signed a waiver beforehand, you may be worried that you can't take any legal action against the party that injured you (or let you get hurt). However, a waiver isn't as ironclad as the business who had you sign it wants you to think. If it's confusingly written, or if it was hidden in other material with nothing to set it apart, then it may not be a valid defense in Texas courts.

So yes, you can most likely still sue if you signed a liability waiver. It could be an obstacle, but it's not a guaranteed "get out of fault free" card. Like most injury cases, yours would probably depend on many different factors—many of which might not be obvious to people without the knowledge or experience to sort out what must be done. That's why it's best to have an experienced premises liability and personal injury attorney on your team.

The Texas attorneys at Grossman Law Offices have decades of experience helping victims of all kinds of accidents, including people who were hurt because of hazardous premises or activities. If you were injured or lost a loved one due to a premises owner's negligence, reach out to Grossman Law today for a free and confidential consultation. Our attorneys are available 24/7 to discuss your situation.