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Does a waiver of liability stop every personal injury lawsuit?

On behalf of Goldstein Goldstein

It’s somewhat commonplace for businesses to try to hide behind a liability waiver form when problems come to light. This includes nursing homes. A waiver of liability form, designed to prevent lawsuits if a patient is injured or killed, is often included in the pile of forms that every new patient signs.

Do they really work? Sometimes they do. Waivers of liability, or release forms, are often scrutinized carefully by the courts. Before you decide that a liability waiver automatically kills any potential personal injury lawsuit, consider all the facts:

  • Waivers need to be written in plain English. A waiver that’s written in confusing jargon may not be enforceable — especially if the court feels that the average person wouldn’t have understood what they were signing.

Waivers can’t be buried in the middle of other forms. If the company didn’t take steps to draw the patient’s attention to what he or she was signing, that may be enough to make a waiver unenforceable.

  • If a patient or his or her child signed a blank waiver form, that’s not likely to be enforced.
  • Waivers are not generally binding if they’re overly broad. A waiver can keep someone from suing in the event of ordinary negligence — like a case of simple neglect — but it won’t necessarily stop a lawsuit due to someone’s reckless or intentionally harmful behavior. Intentional physical abuse by an employee, for example, isn’t likely to fall within the scope of a waiver.
  • If someone dies, New Jersey law hasn’t been favorable toward waivers that try to stop someone’s close relatives from pursuing wrongful death claims. They may keep the estate from filing a suit on behalf of the victim, but aren’t effective at stopping lawsuits from a victim’s spouse or minor children, for example.

In short, not every waiver is worth the ink it took to write it. Don’t assume that a liability waiver is enforceable until a personal injury attorney has reviewed your case.

Source: FindLaw, “If a Business Has a Release Form, Does that Mean It Can Never Be Sued?,” accessed July 20, 2017

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