Avoiding Contract Pitfalls – Part 3: Physical Injury Waivers

We’ve all seen them, and we’ve all signed them. A piece of paper presented for your signature before you rent a jetski, jump at the trampoline park, or engage in all kinds of other recreational activities. If you’ve been to the dentist, hair salon, or a number of other places during the COVID-19 pandemic, you may have signed a similar document there, too. We’re talking about the impenetrable legalese that has something about “waiving ANY AND ALL liability whatsoever” for ANYTHING in the world that could EVER go wrong or happen to you if you choose to engage in the activity.

Is that kind of waiver enforceable? Some of it may be, but some of it probably is not. Louisiana has a Civil Code with a special system of laws (you may have heard others refer to it as the “Napoleonic Code”). Check out the second sentence of Louisiana Civil Code article 2004:

“Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.”

Under Article 2004, the part of a waiver stating that you agree to release someone else from liability for a physical injury that may happen to you in the future is not enforceable against you. Although other parts of the waiver may be enforceable, the part about releasing negligent parties from liability for physical injury in advance of an accident is not enforceable. If you’ve been hurt through someone else’s fault, don’t let a written waiver stop you from pursuing your legal rights.