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Are Hold Harmless Agreements Enforceable?


When you sign yourself or your child up to participate in a sports or recreation activity you may have noticed a rise in the number of companies that require you to sign a document before you participate. Exculpatory contracts, or hold harmless agreements, are being used to try to keep you from suing if you are injured. These documents are being used more often, and in some cases, can restrict your right to bring a personal injury lawsuit if you are injured while participating in an event or at a venue.

When Exculpatory Contracts are Enforceable

These agreements are legally enforceable, and can be used to prevent you from filing a lawsuit if you are injured. However, the language of these agreements must be specifically tailored and narrow enough to make them enforceable. Many are not.

When you engage in higher risk activities, you can be injured by a third party, or by the negligence of the business itself. For example, if you are injured in a skydiving accident, the skydiving company could be liable, or your injury could be the fault of a separate entity—perhaps the maker of a defective parachute.

Remember that exculpatory agreements are between you and the company—not between you and third parties. Thus, the exculpatory agreement may not cover or protect the maker of the parachute, in our example, even if it fully protects the skydiving company.

As a general rule, if the company is seeking to protect itself, exculpatory agreements must specifically say that you are releasing a company from liabilities for injuries that you sustain as a result of the company’s own negligence. If they don’t, they may not be fully enforceable, allowing you to sue the negligent company.

Inherent Dangers

Many waivers only protect the business from injuries that are inherent in the nature of the activity itself. For example, let’s assume you are injured at a trampoline park and you have signed a waiver that says you cannot sue for injuries. That waiver may only protect the business from injuries that are anticipated and in the natural scope of the activity itself.

That means that if you break an ankle bouncing around, you may not be able to sue. However, if a trampoline floor breaks open because it has been negligently maintained, you may still be able to sue, as this is not something that is expected to occur in the ordinary course of the activity itself.

How Clauses Appear and are Worded

These waivers must be clearly stated, and not buried in tiny type in the middle of a document or agreement. They also should be given to you to sign before you engage in the activity. In some cases, specific language may have to be present if you are a parent signing a waiver on behalf of a child.

Contact the Miami personal injury attorneys at Jacobs Legal today if you are injured in an accident. We hold  businesses responsible for injuries that they cause to customers and consumers.


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