Are liability waivers foolproof?

August 17, 2025

By Nadia Cabrera-Mazzeo, Esq.

Short Answer: No, there are many misconceptions about liability waivers.

What is a liability waiver?

Liability waivers are contracts that people sign where they promise not to hold a company responsible if the person gets hurt in certain circumstances. We commonly see liability waivers used for activities that carry a risk of danger and where removing that risk would be unreasonable or even impossible. Consider the risk of drowning at a public pool. The only way to eliminate that risk would be to not go anywhere near the pool.

Liability waivers are contracts that people sign where they promise not to hold a company responsible if the person gets hurt in certain circumstances. We commonly see liability waivers used for activities that carry a risk of danger and where removing that risk would be unreasonable or even impossible. Consider the risk of drowning at a public pool. The only way to eliminate that risk would be to not go anywhere near the pool.

Liability waivers essentially boil down to 3 major elements: 

1.  The patron knows about the risks and dangers inherent to the thing they are about to do;

2. The patron accepts the risk of getting hurt because of those dangers; and

3. The patron agrees not to hold the company responsible if they get hurt as a result of those dangers.

What liability waivers are NOT: 

1.  A substitute for insurance;

2. A free pass for a business to be careless or reckless;

3. Guaranteed protection from liability;

4. Guaranteed protection from a lawsuit.

1)  Liability waivers are limited in scope 

Liability waivers are generally for activities that are inherently risky, meaning there are potential dangers that naturally exist as part of that activity that carry a higher-than-normal risk that someone will get hurt (e.g. sports, amusement parks, farms). 

Liability waivers are not intended to make patrons sign away rights that they normally have under normal circumstances. For example, the right to recover damages if someone slips and falls in an office building or gets hit in the head by a falling light fixture. 

Even if the office with the falling light fixture is an office for extreme skydiving, the liability waiver patrons sign for skydiving does not extend to other parts of the business where patrons are not doing an inherently risky activity.

(Note: Every tort lawsuit depends on the specific circumstances and legal arguments)

2)  Liability waivers need to specifically say what the potential dangers are

One of the major elements of a liability waiver is to put the patron on notice of the risks and dangers that exist and the harm that may occur. The whole point of a waiver is that the patron takes responsibility themselves if they get hurt. But if someone doesn’t know what the danger is, then they cannot properly assume the risk of getting hurt because of that danger. 

Here’s a short excerpt from a liability waiver for a ranching program:

I understand and acknowledge that engaging in activities related to ranching and agriculture involves inherent risks. These risks include injuries and damage due to the unpredictable nature of animals, exposure to allergens, physical exertion, agricultural equipment, and other conditions related to ranching and agriculture. I voluntarily assume all such risks.

These examples clearly give participants of the ranching program an idea of the potentially dangerous conditions they might expect. When I wrote this, I told my client to add more possible risks that they knew about. While it is better to be safe than sorry, you don’t necessarily need to list every horrible thing under the sun that could possibly befall the poor patron. Some liability waivers are so intense, I feel like I’m signing up for certain death. It is enough to define the inherent risks of the activity so that the patron is properly informed and it’s a good idea to include a catch-all sentence that covers related risks that aren’t named.

3)  Liability waivers do not cover gross negligence or intentional acts of harm

Gross negligence is when someone does something that shows a reckless disregard for the safety and welfare of others. If a company employee acts in a grossly negligent way, it doesn’t matter how solid the liability waiver is, the business will likely be on the hook for the damage. 

Say a gym has a pool and an employee accidentally spills massage oil on the pool steps right before a senior swim class and doesn’t clean it up or tell anyone about it. Or say an amusement park opens a ride that failed a safety inspection because they supposedly fixed the issues but haven’t had the ride re-inspected. These situations are more than simple mistakes and go beyond the level of risk associated with the potentially dangerous activity and would likely not be covered by a signed liability waiver. 

Only a judge can decide if something constitutes gross negligence, but companies still need to do what they can to minimize the risk of harm to their patrons and should certainly not be adding to that risk through negligent behavior.

4)  Someone could still sue you—but that’s where the waiver comes in

A waiver won’t necessarily stop an injured and determined patron from suing your business. The liability waiver comes in to, hopefully, stop the lawsuit in its tracks because the patron made a legal promise not to hold you responsible if they got hurt. 

For better or worse, anyone can sue anyone at any time, even when they don’t have a valid claim. But a liability waiver is an essential layer of protection for businesses involved in inherently risky activities.

5)  Liability waivers should not contain unenforceable language as a scare tactic to prevent lawsuits

Before I went to law school but after I started reading things I was asked to sign, I signed a liability waiver for white-water rafting that basically said that the company was not responsible for my death even if it resulted from the river guide’s careless or reckless behavior. Even then, I thought that was ridiculous. I looked it up that night and found out that that part of the waiver was not enforceable in court. 

That part of the waiver was likely a legal scare tactic to get patrons to think they couldn’t sue the company for injury or death under any circumstances, which is not true. We see these legal scare tactics in other types of contracts too—like when employment agreements contain unenforceable and sometimes illegal non-compete clauses (keep in mind that many non-competes are enforceable). 

While some might think it’s savvy to use scary but ultimately meaningless legal language to deter lawsuits, at Honest Contracts, we believe contracts and legal language should not be used to confuse or mislead others.

Law office of Nadia Cabrera-Mazzeo, Esq.

Small business and contracts lawyer

Based in Taos, serving clients throughout New Mexico

505 427 2025

nadia@honestcontracts.com

The information on this website is not legal advice and does not create an attorney-client relationship. The rates and fees listed on this website may not be the most up to date.