Overcoming a Waiver in a Personal Injury Case

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Many activities have some element of risk to them, whether it’s working out in a gym, going snowboarding, or enjoying a day at a water park. Typically, these venues will have participants sign a waiver, which ostensibly prevents the signer from suing if they get injured.

But what happens if you’re injured due to the venue’s negligence? How do you overcome a waiver in this situation?

The good news is in many states, including Illinois, waivers are difficult to enforce, particularly if they’re poorly written or overly broad. Overcoming a waiver in a personal injury case is often fairly simple.

A Few Points in Your Favor in Illinois Law

In Illinois, the following points are in your favor if you are injured after signing a waiver.

1. Most Waivers Aren’t That Well Written

Illinois law requires that waivers be written in clear and concise language. In particular, they should clearly define the activities you’re going to be undertaking, the hazards inherent to them, and your responsibilities in taking that risk upon yourself.

However, many waivers don’t meet that standard. It can be difficult to outline all those details without making the statement overlong and unreadable, so there’s a good chance a waiver could be overruled in court for that reason alone.

2. Waivers Don’t Cover Negligence

Secondly, waivers cannot override someone’s duty to fulfill their duty of care toward others. In the case of a business venue having customers sign waivers of liability, that means those waivers cannot cover the business’s own negligent actions. If they fail to maintain their equipment or take reasonable measures to ensure the safety of their customers, their waiver cannot save them.

3. Disparity in Bargaining Power Counts

Finally, a waiver used in a situation where the signer is in a disadvantageous position typically cannot be enforced. This is especially true if the customer needs whatever services the organization is providing and if they have no viable alternatives. With little room for the customer to negotiate, the customer would generally have the favor of a court and likely be able to recover damages.

What to Do if You’re Injured After Signing a Waiver

If you are injured due to negligent conduct, a waiver isn’t likely to impede your case. That said, following are some actions you can take to solidify your position.

1. Get Medical Attention

First, get medical attention. Doing so can actually help validate your claim by providing evidence as to the severity and likely causes of your injury.

2. Get Some Documentation Together

Second, get some documentation together. Pictures of your injury and the premises where you were hurt can help, as can medical records and the contact information of any eyewitnesses present. And, of course, a copy of the waiver itself is also useful.

3. Contact an Attorney

Finally, contact a personal injury attorney. They can evaluate your case and determine if it’s viable or not. They’ll likely ask you a number of questions about your injury and the circumstances thereof, so bringing your documentation can help in that regard. An experienced personal injury attorney can help you recover damages for your injury and ease your path toward recovery.

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