You may not know what an exculpatory clause is, but there's a good chance you've signed one recently. An exculpatory clause is a clause or an agreement that prohibits you from suing someone else, most often for personal injury claims. They usually contain language telling you that no matter what happens, you can't sue a premises or business owner even if they're responsible for your injuries. These clauses are becoming more and more popular as extreme sports, alternative forms of exercise, and even children's play activities are becoming more and more popular.
Popular for Risky Activities
To some extent, exculpatory clauses are necessary for certain businesses to operate. Companies that may offer, for example, skydiving, hiking, boot camp fitness, or children's activities, can all be fun and even necessary recreational activities which couldn't survive if there was always a threat of lawsuits. Many companies, such as one which puts athletes through fire pits and electrified water, would not be viable without exculpatory clauses. And surely, to some extent, people who engage in risky activities are accepting the risk of their own activities.
Does Negligence Make a Difference?
But what happens when someone is injured not by the activity itself, but by the business' own negligence? For example, if a plane crashes on a skydiving trip because the owner didn't maintain it? Or if a child is injured in an indoor playground because of a sharp object carelessly left exposed? The problem is that exculpatory clauses can protect businesses not just from the foreseen, anticipated risks of activities, but even from their own negligence. And they don't just protect businesses from being sued for injury, but also for accidental death. One business that caters to children was recently exposed for making parents acknowledge in waivers that their kids may be killed on their premises.
Exculpatory clauses can be legally enforceable, but the difference between sustaining injuries and being able to avoid one and file suit, or being forever barred from suing, often rests in the precise language of the agreement. These clauses must be clear and conspicuous to be effective, and the wording generally must specifically include waivers of all forms of negligence--including the negligence of the business owner. In some cases, waivers may only apply to risks inherent in the activity itself, not to unanticipated negligence of the business or its employees. Even when waivers are perfectly worded, many very successful suits have been brought. In some states, a parent can never sign such a waiver on behalf of a child. So there are some strict requirements in order to make these clauses legally binding.
The next time you participate in an activity that requires a waiver, be sure to read it completely. You may want to think carefully about frequenting businesses that require such waivers to be signed (or at least which try to eliminate your right to sue the business for its own negligence). If you are injured, even if you've signed such an agreement, always see an attorney to see what can be done, as you may still have a very good injury claim.