Legal Advice Needed- Waiver of Liability
1,321 Views | 8 Replies
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DartAg1970
10:20a, 4/30/24
Not sure if this is the best board to put this on, but here is my situation:

I have a 4-year-old son with Autism. We are attempting to get him enrolled in ABA services. The ABA facility has all of their paperwork for us to complete. This one document has me concerned. Overall, I am trying to determine if this will hold up or just general advice. It seems like they are saying that even if they are negligent or if someone intentionally harms him or the result is my son's death, I can't file a suit against them, which seems crazy to me. If something like that did happen and I was able to get it in front of a jury, I can't imagine they would throw it out, but my concern is if this could hold up and something does happen, even if it is relatively minor when compared to death.

I will copy it in here, sorry for the length:

"In consideration for [COMPANY] accepting my child for assessment, evaluation or ABA therapy by [COMPANY], I, as a parent or guardian, for myself, my child; and our heirs, personal representatives or assigns, to the extent permitted by applicable law, do hereby waive, release, and hold harmless [COMPANY], its owners, affiliates, management, employees, contractors, staff and their respective representatives, heirs and assigns from all claims of any kind that rise directly or indirectly out of my child's participation in assessments, evaluations, or ABA therapy, and covenant not to sue [COMPANY] for all such claims including without limitation claims for personal injury and property damage."

They go one to provide examples of personal injury or property damage claims we would be waiving:

1. Property damage to personal property such as a child's iPad. Note: my son does have one so he can use it to communicate.
2. Minor injuries such as scratches, bruises, and sprains.
3. Major injuries such as eye injury or loss of sight, joint injuries, and concussions.
4. Catastrophic injuries including paralysis and death.

"I know, understand, and appreciate these inherent risks and, to the extent permitted by applicable law, and consistent with the terms of this waiver of liability and assumption of risk by families, I assume sole, exclusive, and full responsibility for my child's injury or harm in any manner related to assessments, evaluations or ABA therapy and their activities."

Seems like maybe the portions saying, "to the extent permitted by applicable law" is meant to be some kind of a carve out which could allow for legal action under certain circumstances, but I just don't know the applicable law. There is more to the document but feel like this gives the gist of the document. Any advice would be helpful. My older daughter is Autistic as well and we had her in ABA at a different facility and I honestly don't recall signing something like this. I am sure we signed something acknowledging the risks, but this seems to go a step further in an attempt to absolve them from any responsibility for anything that could happen to my child while he is technically in their care.
Sims
10:31a, 4/30/24
Not a lawyer, but I think it is referring to the opposite when referring to applicable law. No matter how much a liability waiver waives, it can't supersede actual statutes.

If your kiddo is hurt due to a criminal act, the waiver doesn't address that and you'd have the full spectrum of relief available to you. If it was an accident...the waiver speaks more to that.

I should end by saying, in my opinion
one safe place
12:54p, 4/30/24
I am not a lawyer either, but sometime in my past (and I do not remember the circumstances as to why the conversation came up) I seem to remember something about an agreement regarding limiting liability for a child being different from an agreement regarding limiting liability for an adult. Sorry I cannot remember more about it, but definitely worth running it by a lawyer.
JobSecurity
1:58p, 4/30/24
In reply to one safe place
one safe place said:

I am not a lawyer either, but sometime in my past (and I do not remember the circumstances as to why the conversation came up) I seem to remember something about an agreement regarding limiting liability for a child being different from an agreement regarding limiting liability for an adult. Sorry I cannot remember more about it, but definitely worth running it by a lawyer.
I think there was a thread on here discussing that topic in regard to bounce houses
bmks270
1:36p, 5/1/24
Have a lawyer review.

Also remember, you can still sue them. Doesn't matter what you sign. Then the court will review the contract and determine if the lawsuit can proceed or not. But obviously you want to not waive certain rights.

I think typically a liability waiver can't waive liability in the case of criminal behavior that leads to damages, such as fraud, etc, but you should have your own legal council confirm the extent of the liability this particular contract seeks to waive.

For example, what happens if an employee hired by this company has red flags, or some criminal history of violence, then one day murders the kids. Does this waiver now mean you can't sue them for damages? Idk, I'd ask a lawyer.

I also don't think it's clear if statutory rights can be waived or if such waivers are void. From my recent reading it seems to depend on the individual statues and case law if you can waive your own statutory rights.
ThenamesAg
5:07p, 5/1/24
You should have a lawyer review to provide more detailed advice, and this response is not intended as legal advise.

Generally, liability waivers are effective at preventing you from asserting a claim for negligence on the part of the business (e.g., if they drop your son's IPAD and it breaks, or if they grab him too hard and it causes bruising). It will not, however, be effective in waiving intentional acts (e.g., they cannot punch your son and hide behind the waiver). It also should not apply to gross negligence (in between negligence and intentional acts).

I doubt the business will accept your son without the waiver and most companies will not negotiate these terms. IMO, it's going to be a risk assessment on your part on whether you think you can trust these people.
LMCane
12:52p, 5/2/24
In reply to ThenamesAg
agreeing here with the last part-

like with the Vaccine waivers, if you want the product you are likely going to be forced to sign the waiver.

my guess is they will not make an exception to you- either take it or leave it.
BrazosDog02
1:11a, 5/4/24
Gross negligence can be covered under that agreement. Whether it will hold up is something you'll have to test if it comes to pass. This has been covered on texags recently by an attorney and I hope he finds this and opines.

But either way, whether you like the language or not, you sign it or you don't participate.

Will it hold up in court? I can't say with certainty, looks like a big "maybe or maybe not".

Here is an article that may be of use:

https://agrilife.org/texasaglaw/2019/01/14/texas-case-offers-good-analysis-of-enforceability-of-liability-release/

I'd say that you better sign it if you want to participate but also be aware that there's a good chance you have no leg to stand on if things go bad. Use your judgement.
AgPrognosticator
7:18a, 5/14/24
As a lawyer, I can tell you a lot of these answers, though well-intended, are wrong.

Talk to a competent attorney rather than relying on TexAgs.
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