Is There Any Way to Defeat a Hold Harmless Clause?
More and more, people are being forced to sign hold harmless agreements before entering business properties, participating in team sports, going into gyms, or before they can engage in any kind of activity or extreme sport. But are these hold harmless agreements really enforceable?
What Does a Hold Harmless Agreement Do?
As the name implies, a hold harmless agreement limits, and sometimes completely restricts and prevents your ability to sue a business or property owner for damages, in the event that you are injured on their property.
Often, hold harmless agreements are their own, separate agreement, but they may also be buried as provisions in other, larger contracts or agreements.
These hold harmless agreements are contracts, enforceable as any other contract would be, and courts can and do enforce them. But that doesn’t mean that just because you signed one, you can’t sue after you have sustained an injury. Courts criticize these agreements, and require they contain very specific language. Additionally, oftentimes the agreement could be worded in a way or style that could render the agreement unenforceable under the law.
In some cases, the hold harmless is unclear whether you are waiving your right to sue for injuries inherent in the activity itself, or for activities that are not inherent in the activity itself.
For example, let’s say that you sign an agreement saying you won’t sue for any injuries that may arise from ice skating in an ice skating rink. Certainly, if you fell on the ice, it is likely you couldn’t sue.
But what if, for example, there was a loose wire and you were electrocuted? What if you got food poisoning at the rink’s concession stand? What if you were attacked in the rink’s parking lot? Does your release cover these events, given that none of them are inherently related to the activity of ice skating? The answer is, it depends on many factors, likely leaving open an avenue for you to get compensation for your injuries.
Who is Negligent?
Many courts have also said that a property owner must specifically say whether you are waiving your right to sue for the property owner’s own negligence. Some hold harmless agreements do not use the kind of magic language required. Thus, you may be able to sue the property owner that caused your injury through his/her own carelessness.
A release can never actually release any third parties, who aren’t a party to your release. In some cases, businesses, people or entities may be liable for your injury but they are not associated with the property owner.
For example, if you were attacked in the parking lot of the ice skating rink, there may be a security company that is liable. If you fell on poorly maintained ice, there may be a separate company that maintains the ice that can be sued. Many businesses use contractors and subcontractors and independent contractors to handle tasks, and the hold harmless clause may not extend to those companies.
*Call the Fort Lauderdale personal injury attorneys at Rosen Injury Law today for help with your personal injury case.