“Ask Your Attorney” Column

About Using a “Liability Waiver” in Your Business

Dear Counselor: My husband and I want to set up a business renting watercraft on the lake, and this will include ski boats.  We wondered about having our customers sign those kinds of liability waivers that everyone signs when you buy fireworks or sign up for a race or something like that.  We don’t want people to be suing us if there is an accident. Good idea, or not?

Dear Client: Many business have their own form of “waiver of liability” forms that they use in an effort to limit their exposure to damage claims.  The problem is that our courts have repeatedly said that these kinds of agreements are looked upon with disfavor.  While a waiver agreement is not invalid per se, it will be construed against the party seeking to rely on it, and as often as not, a waiver or release will be declared invalid and unenforceable.  Courts just do not like them.  While there are situations where the waiver or release will be upheld, strict rules must be followed.  A waiver should be written to release only claims of negligence, must not be written in a way that violates “public policy” and must give the customer an opportunity to “bargain” in regards to the terms of the release.  Since these rules have been established through a series of appellate court decisions, it is essential that you have your form reviewed by an attorney familiar with this area of the law.  The focus should be on releasing negligence claims, and since these waivers are difficult to enforce, make sure that you select a form of business entity [such as a corporation or limited liability company] that will provide you with protection against a loss of your personal assets, and get your business properly insured with coverage in amounts that will reasonably cover your business’ exposure to damage claims.  That way,    if your waiver is declared unenforceable, you will have insurance protection.  Best of luck to you, and let me know if I can help when you are ready to form your business.

John L. Maier, Jr.
Marcus Weden

Sweet & Maier, S.C., Attorneys
114 N. Church St.
Elkhorn, WI 53121