Liability Waivers: Can You Sign Away Your Right to Sue?

How do you know if a waiver of liability is valid in Georgia?  Georgia courts have addressed the issue in numerous opinions over the years, and these decisions generally hold that if a wavier is well-worded, written in plain English that is easy to understand, and does not have any ambiguities, the Courts are more likely to find it enforceable.  However, there are some exceptions and it really depends on the language contained in the Waiver.  Like the answers to so many questions, it depends on each situation!

“In Georgia, [the] general rule is that a party may exempt itself from liability to the other party for injury caused by its negligence, and the agreement is not void for contravening public policy.” Lovelace, et al. v. Figure Salon, Inc., 179 Ga. App. 51, 52, 345 S.E.2d 139 (1986).  As a result, a proprietor may seek a release of liability from its patrons.  Georgia Courts have found that there are three exceptions for when a contractual waiver of liability for simple negligence should not be upheld.  Those are 1) when the wavier violates public policy; 2) the consideration for the contract is contrary to good morals or the law; and 3) the contract is entered into for the purpose of effecting illegal or immoral agreement or doing something which violates law.  Williams v. Cox Enterprises, Inc. 159 Ga. App. 333, 283 S.E. 2d 367 (1981).  The Court of Appeals has gone on to state that:

It is the paramount public policy of this state that courts will not lightly interfere with the freedom of parties to contract.  A contracting party may waive or renounce that which the law has established in his or her favor, when it does not thereby injure others or affect the public interest.  Exculpatory clauses in Georgia are valid and binding, and are not void as against public policy when a business relieves itself from its own negligence.

Neighborhood Assistance Corp. of Am. v. Dixon, 265 Ga. App. 255, 256, 593 S.E. 2d 717,718 (2004)

One case that provides a good example of the Court’s examination on this subject is Williams v. Cox Enterprises, 159 Ga. App. 333, 283 S.E. 2d 367 (1981).  In Williams, the plaintiff entered the Peachtree Road Race and collapsed during the event as a result of a heat stroke.  He filed suit alleging negligence against the sponsors of the race for failing to adequately warn him, which he claims resulted in his hospitalization.  The defendant sponsors filed for summary judgment based on the written waiver of liability executed prior to the race and the doctrine of assumption of the risk.  The trial court granted the defendant’s motion for summary judgment.  Id.  On appeal, the Court of Appeals affirmed the trial court’s ruling and held that the waiver of liability by the participant was not contrary to law or morality, was not invalid due to disparity in bargaining positions, and where the plaintiff both read the warning on the entry and was already aware of the danger, recovery was precluded under the assumption of the risk doctrine.  Id.

The Williams court held that the contractual waiver of liability for simple negligence is valid, except where the waiver violates public policy.  The Court of Appeals explained that it cannot be contrary to public policy unless the General Assembly has declared it to be so, or unless consideration of contract is contrary to good morals and contrary to law, or unless contract is entered for purpose of effecting an illegal or immoral agreement.  Id.  Simply put, the Court followed the general presumption under Georgia favoring enforcement of waivers, and concluded that no exceptions to the rule applied.

Keep the lessons of the Williams case in mind the next time you see a waiver provision – waiver provisions are everywhere, and knowing whether a waiver is enforceable or not is often a critical factor in determining the scope of a party’s right to legal redress.