Can the Risks of “Informed Consent” or Liability Waivers Negate Your Personal Injury Case?

Answers to that question and others like it are critically important in today’s complicated legal environment, where documents you might be asked to sign – such as non-disclosure agreements (NDAs), indemnification clauses, mandatory arbitration agreements, liability waivers, and even restrictive employment contracts – are becoming more and more commonplace.

For example, did you know that medical providers provide individuals with information about their diagnosis, the patient’s prognosis, and proposed treatments so that patients (or their legal representatives) can sign a document indicating their “informed consent” (also sometimes called “explicit consent”) prior to having surgery or receiving other medical care? By helping patients fully understand their medical conditions, and asking them to agree in writing to a treatment plan and statement of potential risks ahead of time, doctors hope to avoid the chances of medical malpractice lawsuits if something should go terribly wrong while someone is in their care.

Along those same lines is the concept of “implied consent” – which occurs, for instance, if an accident victim has been rendered unconscious and can’t verbally approve first aid or emergency room treatment. In cases of this nature, healthcare professionals and other helpful individuals are often protected by “Good Samaritan” laws designed to safeguard them from legal jeopardy, unless their actions demonstrate “willful and wanton misconduct” or make the patient’s condition worse through “gross negligence” or particularly reckless behavior.

The Foul Dangers of Getting Hit by Foul Balls

Similarly, were you aware that just by entering a sports stadium, climbing a rock wall in a gym, attending a concert, or visiting a popular tourist attraction, you might be offering the facility owners a variation of implied consent or even agreeing to pay their legal bills by signing an indemnification clause or waiving their potential liability and promising not to sue them if you’re hurt on their premises? That’s because it’s often considered obvious that dangers may be inherent in the activity in which you’re engaging – even at such seemingly safe events as conventions, concerts, “fun runs,” plays, parades, charity fundraisers and other public occasions. (This situation is sometimes referred to as “assumption of risk.”)

Consider the following examples of the confusing “legalese” that’s out there, printed on the back of event tickets or buried in small type on other documents you’re asked to sign when using a gym, enjoying a recreational facility, participating in a social event, or dropping off kids at summer camp – all of which could someday negatively impact you or the people you love.

When you go to a sporting event, a skating rink, a theme park, or a similar venue, you’re frequently asked to – in the exact words of one park’s waiver of liability – release the organization “from liability for personal injury, property damage, or wrongful death caused by negligence or any other cause.” The broad language contained in this type of “fine print” disclosure can also be found in many other places – even on the tickets you buy to attend events like major and minor league baseball games. To quote one such ticket, a Michigan minor league baseball team informs its fans that by attending the team’s games, they are agreeing to release the ball club from “all claims for personal injuries, wrongful death or exposure to or contraction of COVID-19 or other communicable disease by holder, (or) any accompanying parties.”

Even our very own Detroit Tigers make similar disclaimers of liability on their tickets and the team website, stating (in part), “the ticket holder assumes all risk and danger incidental to the game of Baseball, including, specifically (but not exclusively), the danger of being injured by thrown bats and thrown or batted balls, and agrees that the Commissioner, the Participating Clubs, their Agents, Players and employees are not liable for injuries resulting from such causes. The Tigers cannot be held responsible for the conduct of other fans when attempting to obtain a foul or home run ball.” Included as well are the following sentences (yes, in all capital letters): “HOLDER IS DEEMED TO HAVE GIVEN A FULL RELEASE OF LIABILITY TO RELEASEES TO THE FULLEST EXTENT PERMITTED BY LAW. IF HOLDER CANNOT AGREE FOR ACCOMPANYING PARTIES, ACCOMPANYING PARTIES MUST LEAVE THE EVENT.”

In other words, if you don’t agree to willingly forfeit your personal safety to see the Tigers play in person at Comerica Park, you can take your balls and go home! By the way, the term “accompanying parties” in these documents is a way for them to describe the children you bring with you to the ballpark– meaning parents are essentially being asked to sign away the safety of their kids if they wish to enjoy these family-friendly activities together.

This Kind of Circumstance Can Be Seen Almost Everywhere

These types of insidious legal disclaimers are virtually everywhere nowadays. For instance, if you visit the Michigan Economic Development Corporation’s Pure Michigan web page to find a ski resort, hotel, restaurant, shopping destination, electric vehicle charging station, or some other attraction where you’re later injured, the site has language requiring you to promise you won’t sue the people behind it for providing you with information that led you to the listed attractions. Specifically, the “terms and conditions” page states that “the user agrees to hold the MEDC, members of its Executive Committee, members of its corporate Board of Directors, or its employees or agents harmless from and against any damage, loss, or liability arising from any use of the information contained on this website.”

Want to spend some time this snowy season enjoying the skiing and snowboarding slopes at Pine Knob? You’ll be asked to sign a lengthy document which, among other things, informs you that “downhill skiing and/or snowboarding in its various forms, is an inherently hazardous and dangerous activity. Such activities include many risks including the risk of serious injury and death.” The form goes on, requiring you to “freely and knowingly accept and voluntarily assume all risks of property damage, personal injury and death to me while on the premises of the ski area.” By signing, you also agree to “release from liability the ski area, its agents, employees, directors, officers, shareholders, ski patrollers, ski instructors, affiliates, partners, corporations, associations and the like from any and all claims, actions, causes of action demands, rights, damages, costs, loss of services, expenses and compensation whatsoever which the undersigned now has or which may hereafter accrue on account of any foreseen or unforeseen bodily injuries and/or damages.”

Want to bring your kids along for all the downhill fun? Then you also have to state that, “the undersigned agrees for and on behalf of any minor who is involved in obtaining this season ski pass and/or any of the services of the resort that the undersigned parent, adult guardian, supervisor, and/or conservator agrees to indemnify and hold harmless the ski area, the ski school, and any of its instructors, agents, administrators, employees, firms, servants, corporations, affiliates, partnerships and the like from and for any and all damages, legal fees or expenses, fees and costs, rights, causes of action, losses, claims and actions which may, do or shall arise or grow out of any known or unknown injuries and/or damages which occur as a result of engaging these services and/or while participating in activity on the premises of the ski area.”

Similarly, if you decide to enjoy a holiday excursion on Michigan’s famous North Pole Express steam train during the Christmas season next year, you are agreeing to the “fullest extent permitted by law, to release and hold harmless Great Lakes Central Railroad, Inc., State of Michigan, Department of Transportation, its commissioners officers, directors, employees, agents, volunteers, and contractors (collectively, ‘Releasees’) from any claim, demand, loss, liability, damages, and attorney fees and costs whatsoever arising from, related to, or resulting from these Risks.” The only exceptions allowed under this blanket agreement are injuries “caused totally by the negligent acts or omissions” made by any or all of the organizations listed above!

So… Am I Constantly Signing Away My Rights?

You might imagine that if you sign a non-disclosure agreement (NDA), agree to a waiver of liability, accept an employment contract, or even if you simply attend a sporting event, you have no legal recourse if something goes wrong, and you’re hurt through no fault of your own. However, there are many reasons a court might choose not to accept or enforce these types of agreements, especially if it can be proved your injuries resulted from a business or other organization failing to take proper care for client or visitor safety, or that a minor child was injured.

What’s more, the Michigan Whistleblowers’ Protection Act safeguards your rights if you report a violation (or a suspected violation) of federal, state or local laws, rules or regulations to a public body. So, if you believe your employer is asking you to sign an illegal document, or if you are being coerced, or if your job security is being threatened, we might be able to help. For example, employees laid off from their jobs are sometimes asked to sign restrictive agreements promising to not disparage or take legal action against their employers as a condition of receiving severance payments or other post-employment benefits. But the National Labor Relations Board recently ruled (in a case involving a Macomb County, Michigan, hospital) that coercive restrictions such as NDAs and non-disparagement agreements cannot be legally enforced as a quid pro quo for obtaining severance benefits.

And if you or your children do get hurt or if – worst case scenario – someone dies as the result of being hit by a foul ball or suffers some other serious injury at a football stadium, a little league game, a roller rink, a scout camp, a dance class, or some other sports venue, we can help you explore all available legal avenues to see that the injured kids’ rights are protected – even if you’ve signed a so-called liability waiver to permit them to attend or participate.

Where Should I Go for Help if I Get Injured but Signed a Liability Waiver?

You can start by getting in touch with us and describing what happened. A Mike Morse Law Firm attorney familiar with the ins and outs of Michigan law will help you decide what steps to take in your specific situation. For instance, as we reported here a few months ago, a recent Michigan Supreme Court decision has dramatically changed how slip-and-fall injury lawsuits will be decided going forward, hopefully making it more likely that injured parties will be successful in receiving the compensation they deserve for the gross negligence of property owners, carnival operators, event organizers, concert venues, and others. So, it’s important to have a knowledgeable team of well-informed legal experts on your side to help you determine if negligence by a property owner or organization makes them liable for your injuries regardless of whether or not you’ve signed a waiver of liability. To get the ball rolling, call 855-MIKE-WINS (855-645-3946) or contact us online right here.

Content checked by Mike Morse, personal injury attorney with Mike Morse Injury Law Firm. Mike Morse is the founder of Mike Morse Law Firm, the largest personal injury law firm in Michigan. Since being founded in 1995, Mike Morse Law Firm has grown to 150 employees, served 25,000 clients, and collected more than $1 billion for victims of auto, truck and motorcycle accidents. The main office is in Southfield, MI but you can also find us in Detroit, Sterling Heights and many other locations.