We’re all familiar with the concept of a waiver. Chances are you have signed one for yourself or a minor to be able to participate in some sort of activity that is deemed “dangerous” such that you explicitly agree to accept your own risk and hold the owner harmless. Skydiving, bungee jumping, hot dog eating contests are all prime examples of why a waiver may be necessary – because if something happens to someone while participating in one of these inherently dangerous activities, the finger of blame should be redirected to point right back at the participant, not the host.
However, waivers aren’t just for marathons and visits to “extreme” haunted houses that could induce cardiac conditions or post-traumatic stress disorder. Waivers can pop up in the unlikeliest of places. Take for example, the recent Equifax data breach. In the aftermath, Equifax offered free credit monitoring with some insurance for identity theft to all consumers whose data was compromised as part of the breach. Yet, according to the terms of service for signing up for this service, the same consumer who just had their data potentially sold on the black market would also agree to waive their right to participate in a class action suit against Equifax.
This is not the only heavy-handed use of waivers in consumer contracts, unfortunately. Most contracts for services including software licenses, cellular contracts, and even mortgages, contain waivers of the right bring an action in court, requiring the aggrieved party (99% of the time this is the consumer) to take their complaint to alternative dispute resolution. While courts have been fairly successful in stripping these clauses from these contracts, this resolution requires that someone sue the company and endure the costs of litigation. Not many consumers have the time, resources, or patience.
So what’s do you do when you are faced with a waiver? First, read the waiver. It may be a sentence written on a wrist band or it could be a page of legalese. No matter, it is important to read it and get at least a basic understanding of what you are exactly being asked to sign away. This will be harder with consumer contracts like software licenses and mortgages. However, these contracts are usually required to be written in such a way that the information is easy to find. Headers marked “Waiver of Rights” and “Waiver of Trial” are good things to look for.
Once you’ve read the waiver and grasped what you’re being asked to give up, determine what you are still getting. For example, the waiver in the contract for your cruise may prohibit you for suing the cruise operator for your slip and fall but you are still allowed to sue for injuries arising out of their negligence. The ability to sue for gross negligence is important as it is what usually causes injuries or damages in the first place.
More often than not, you will still accept the waiver since the extreme outcome – i.e. you collapse in the marathon, you decide to sue the software company for making a defective product, you suffer a grievous injury in a chili eating contest – that you are agreeing to let the other person out of paying for is not usually one that you anticipate will happen. Still, it is never a waste of time or energy to read the waiver and decide for yourself if it is something that you can live with. Your attorney, like a personal injury lawyer can also help you understand the waiver and what rights you might be giving up.