Article Reviewed by a licensed insurance professional: Sam Meenasian (CA dept of insurance license #0F75955).
Estimated reading time: 4 minutes
You may have a waiver that you use routinely in your business. Maybe you don’t use one in your business, but you’ve signed one before.
Think about the times you paid to do dangerous activities. Like trampoline parks, amusement parks, and the like. You probably recall being asked to sign a waiver.
Waivers are commonly used. But they are only effective in certain situations. Sometimes, even when your client signs a waiver, you can be susceptible to legal problems.
What’s a Waiver?
A waiver is a release from liability. The person who signs it is essentially giving up their right to take legal action for certain risks.
Sounds great in theory, but it’s not a catch-all. But why not?
Can Negligence Be Waived?
In many states, a waiver may limit claims for ordinary negligence if it’s clear, conspicuous, and not against public policy—but courts closely scrutinize these clauses, and waivers typically cannot excuse gross negligence, recklessness, or intentional misconduct. Because rules vary by state and situation, have your waiver reviewed by a qualified attorney in the state where you operate.
Negligence generally involves:
- A duty of care
- Breach of that duty
- Causation (actual and proximate)
- Damages
If an incident results from a failure to use reasonable care, a waiver may be challenged or limited, and you can still face a claim. Even a strong waiver typically doesn’t prevent a lawsuit—it’s a defense tool, and outcomes depend on jurisdiction and facts. Courts can refuse to enforce waivers that aren’t clear and conspicuous, weren’t properly presented or disclosed, are overly one-sided (unconscionable), or violate public policy. And waivers typically do not bar claims involving gross negligence, recklessness, or intentional misconduct. Whether a waiver can limit ordinary negligence claims depends heavily on your state’s law and the specific facts of the situation.
Is It Still Worth Using Waivers?
Even though waivers may not eliminate all liability, they can still reduce exposure by clarifying risks and strengthening defenses to certain claims—depending on your state’s law and how the waiver is presented.
Even with robust safety protocols and OSHA compliance, incidents can still occur, and claims can still be filed. A brief lapse in attention by a worker or a passerby can escalate into an injury allegation, and you may still find yourself defending a lawsuit.
If the injured person signed a well-drafted waiver and the facts support that you acted reasonably, the waiver may improve your ability to defend the claim, but it’s not a guarantee. People can still file lawsuits, and enforceability depends on the waiver language, how it was presented, and the applicable state law.
Are There Different Waivers?
There are different types of waivers for different situations. You can use them all as needed. Use the right risk-transfer tool for the right job.
- Hold Harmless Clauses– Can shift certain costs or liability between project parties, but the details matter. In many states, an indemnitor may have no duty to defend unless the contract clearly says so, and construction anti-indemnity rules may limit how far indemnity (and even additional insured requirements) can go.
- Assumption of Risk– More pointed waivers that let the client know about specific risks associated with an activity
- Change Orders & Claim Releases– When scope changes mid-project, change orders should clearly define the new scope, price, and schedule.
They are different tools for your contract toolkit. Speak to a professional for more information.
Waivers aren’t an insurance replacement.
Even a well-drafted waiver doesn’t prevent lawsuits or pay legal defense costs by itself. Contractors typically rely on a combination of: commercial general liability (CGL), workers’ compensation (where required), commercial auto, umbrella/excess liability, and, depending on work, pollution coverage. Your contract terms (indemnity, additional insured, waiver of subrogation) should be coordinated with your actual policy language and endorsements.
“Waive” Hello To Your Trusted Insurance Partner
If you need commercial business insurance, look no further than USA Business Insurance. With decades of experience helping contractors find their perfect insurance match, you can bet we know a thing or two about what we’re doing.
Important: This article is for general informational purposes only and does not provide legal advice. Waiver enforceability varies by state and fact pattern. For legal guidance, consult a qualified attorney licensed in the state where you operate and where the work occurs.
