By: Jackie Cooper
I recently took my kids to a friend’s birthday party at a skating rink. A big sign on the glass of the ticket booth in the lobby said – SKATE AT YOUR OWN RISK. That was it. No waiver. I remembered all the injuries I saw at the popular skating rink we used to frequent when I was a kid, and my lawyer-brain short-circuited for a minute. This was a Mom-and-Pop place, in business since the 70’s. Then I thought – maybe it is a magical place where no one is ever hurt. Or maybe they just don’t know about waivers.…
A business cannot control the law on waivers in Texas, but it definitely can take some steps to put itself in the best position to enforce a waiver in a Texas court. First, we will take a look at the basics of liability waivers and the current law on enforceability in Texas. Then, we will outline some practical ways you can use waivers to 1) inform patrons of their risks and responsibilities, and 2) protect your business in the event of a claim or lawsuit.
Liability waivers are not a permission slip. They are contracts, often between a business and a patron, that 1) inform the patron of their risks and responsibilities in connection with the premises, activity, product or equipment, or service, and 2) shift liability for the patron’s potential injuries or damages from the business to the patron (or parent/guardian of the patron). The business, in exchange for the patron paying and signing the waivier, allows the patron to have access to or use of the premises, activity, product or equipment, or service.
You probably will encounter liability waivers at, just for example, gyms, gymnastics centers, skating rinks, trampoline and adventure parks, horse stables, climbing centers, ski facilities, sleep-away or day summer camps, jet ski and boat rentals, little league, go-karts, lion-taming, archery on horseback, etc. You get the idea.
Generally, adults can sign liability waivers on behalf of themselves, their children, or other children for whom they have some legal authority or responsibility. Minors do not have capacity to enter into contracts so they cannot sign a liability waiver.
Liability waivers can be enforced in Texas if they satisfy certain requirements, including that the waiver provides fair notice to anyone signing it that they are relinquishing certain rights in exchange for being permitted access to or use of the premises, activity, product or equipment, or service. The “fair notice” test has two parts: 1) “express negligence rule,” and 2) conspicuousness.
The first requirement is the “express negligence rule,” first adopted by the Texas Supreme Court in 1987. It is more stringent than the previous “clear and unequivocal rule” and requires that the business or party seeking the waiver from the patron must clearly state in the waiver its intention that the patron release or indemnify the business for all liability caused by anyone’s negligence, including the business’s own negligence. The language in the waiver must be clear and unambiguous. Texas courts often have found the express negligence rule satisfied when the waiver identifies the specific types of injuries and claims.
Types of claims to mention might include negligence, gross negligence, and wrongful death/survival claims. Types of injuries to identify might include, for example, broken bones, head or neck injury, paralysis, and death. These risks should be specific to your business and, particularly, as to injuries.
Remember - the waiver is an opportunity to educate and warn your patrons and/or their parents/guardians of the risks of the acitivity or equipment they are choosing to use, in addition to the warnings provided in your orientation, patron education and supervision, and signage. What gets your attention when you are reviewing a document? Considering putting this section in BOLD, HIGHLIGHTED, CAPITAL, UNDERLINED TYPEFACE IN A LARGER AND/OR DIFFERENT FONT.
The second requirement, that a liability waiver be “conspicuous,” means that the waiver language must satisfy the standard in the Uniform Commercial Code. Specifically, “something must appear on the face of the [contract] to attract the attention of a reasonable person when [s]he looks at it.”
Texas courts look for BOLD, HIGHLIGHTED, CAPITAL, UNDERLINED TYPEFACE IN A LARGER AND/OR DIFFERENT FONT than the rest of the document, and with a document title and section header(s). Again – think about what gets your attention when you are reviewing a document.
Meeting these minimum requirements (express negligence rule and conspicuousness) is good, basic business practice; but, it is no guarantee that a business will not end up in a lawsuit. If a patron signs a valid and enforceable waiver, and then they or their child gets hurt while doing the activity or using the equipment, they can still sue the business on behalf of themselves, their injured child, and even an uninjured child or spouse impacted by the adult’s injury. In that instance, the business should assert the defense of waiver and seek a summary judgment (a disposition with less expense than a trial).
The court will decide whether the waiver is enforceable against each party making a claim, regardless of who signed it. Each party has specific claims and the waiver may apply to some, but not all of the claims. So you may have a mixed outcome based on the current law in Texas.
Texas courts generally recognize that a parent/guardian cannot waive claims for a child’s injuries, including pain and suffering and mental anguish. However, economic damages for a child’s physical injuries usually belong to the parent because the parent pays or is responsible for paying the child’s medical bills. It would not be unusual for a court to apply the waiver (signed by a parent) to dismiss the parent’s claims for economic damages (incurred for the injured child’s medical care) and non-economic injury, like mental anguish or loss of consortium, but to hold that the child’s claims for pain and suffering, mental anguish, and possibly even future claims for loss of earning capacity, were not waived.
First, if you are aware of the possibility of patron being injured while on your premises, even if no one does anything negligent, require that their parent or legal guardian(s) read and sign a liability waiver and release with indemnification. We are available to prepare a liability waiver for your particular needs, or to review your existing one.
Second, if your circumstances allow, consider checking the signor’s identification to ensure they are at least 18 years old and have an employee witness them signing as a regular practice. The employee(s) can later testify, “I made it my practice to check their age/watch them sign every time.”
Online waivers offer convenience to the business and the patron, but they also allow for questions and denials in a lawsuit. Consider whether you can implement a confirmation process to ensure that no waiver is signed fraudulently by a minor or someone without the right to sign for a minor. If you cannot dedicate staff for this purpose, perhaps direct a video camera at signing stations or counters and save the footage along with the actual waivers.
Third, some business with memberships or that have regular patrons may only have the patron sign a waiver once, or annually. Consider whether having patrons review and sign more frequently or at every use makes sense for your business. In defending a lawsuit, it is easier to argue that claims should be barred by waiver if the waiver was signed at the time of the incident and not months or years before it.
Fourth, whether the waiver is digital or hard copy, keep a legible copy in good condition and accessible for as long as practicable, but at least for five years. Not every lawsuit is brought within Texas’s two-year statute of limitations for personal injury.
Last, create a process to review and update your waivers if your business changes, and to make sure that you are 1) in compliance with Texas law and 2) putting your business in the best position to seek the protections provided to it by Texas law.
Unless your business is located in a magical, injury-free bubble, consider how to make Texas law on liability waivers work best for you. And we can help you with that.
 Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 708 (Tex. 1987).
 Arthur's Garage, Inc. v. Racal-Chubb Sec. Sys., Inc., 997 S.W.2d 803, 814 (Tex. App.—Dallas 1999, no pet.) (citing Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 510–11 (Tex. 1993); Tex. Bus. & Com. Code § 1.201(10)
 Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004) (quoting Dresser, 853 S.W.2d at 508).