027 Waivers: What to Know Before You Sign

VERONICA:  Hello, hello, hello, welcome to Lawyers in the House with Montlick on WSB. I’m your host, Veronica Waters, asking you this question. What is it that going to the gym, going skydiving, going rock climbing, going to the theme park and going to dinner all have in common?

ELLEN: Hello.

VERONICA:  Hello back in the house with us, and Jennifer Fleming.

JENNIFER: Good morning.

VERONICA:  Oh yeah, it’s a song-filled day.

ELLEN: Gonna sing all day.

VERONICA:  So, if you are fans of the show, which I hope that you are, you already know that Ellen and Jennifer have been here before. We had such an amazing time.

ELLEN: Absolutely. So, well, first I wanted to be a ballerina, right, as all little girls do. And then I thought I would be the president. That didn’t work out. I wanted to be a veterinarian and help animals.

VERONICA:  How much arguing do you get to do on a daily basis

ELLEN: A lot.

VERONICA:  Yeah?

ELLEN: Quite a bit with insurance companies and insurance adjusters, other attorneys. So, it is a great outlet for that.

VERONICA:  Now, the last time you were here, did we talk about your Great Danes?

VERONICA:  And now you have news for us.

ELLEN: Yes, the Great Danes went to, they actually legitimately went to live on a farm. They were too big for my little bitty kids, but the good news is we have chickens. And our chickens last week started laying eggs, which were very excited about it.

VERONICA:  Yay.

ELLEN: The chickens are a better fit for the four- and five-year-old, almost 5 and 6-year-olds that I have at home. So yes, chickens in the house.

VERONICA:  Chickens in the house. All right, we should have brought one in for the show. And a chicken in the house, you know? Who’s to say, it might work, you know?

ELLEN: Who’s done it before?

JENNIFER: Yes.

VERONICA:  ..that you wanted to help people. What was that all about? Both of my parents were in service. My mother was an educator. My father worked in nonprofits his whole life. Volunteering was very important growing up. And so now I get to help people professionally, which just fills up my bucket.

VERONICA:  You were talking to me to about the fact that you got really, you got hired very quick at Montlick.

JENNIFER: I did.

VERONICA:  Like, it was sort of a wham bam. Welcome to the firm, ma’am.

JENNIFER: I did. So, I was living in New Jersey at the time. And I had flown in, it was over 4th of July weekend. I had gone to the beach for the weekend, drove up for the interview, and I was flying out that afternoon.

VERONICA:  Now, were you the one who was the public defender?

ELLEN: That was me.

VERONICA:  You were. Did you ever do any defense work?

VERONICA:  One criminal defense trial.

JENNIFER: For a managing partner that couldn’t do it that day. I was thrown into it. And I think I was actually successful, but it was literally my first trial maybe, oh gosh, 15 years ago, so.

VERONICA:  And you did public defense.

ELLEN: I was and loved it.

VERONICA:  You did love it?

ELLEN: I did love it.

VERONICA:  Commonalities? Lots of commonalities. I think that the biggest one, like Jen said, is helping people at their lowest moment, right?

JENNIFER: I did. I clerked in family law and that is a very difficult field to be in because they say it’s everyone at their worst moment because what’s more personal than your family? And after that, I was thinking, what could I do that I could help people and personal injuries seem to be the resounding answer. So, it was great. I went into personal injury right after clerking and I’ve been here ever since.

JENNIFER: Although you may think I am a trained soprano, I am not.

ELLEN: She’s an alto.

JENNIFER: That’s right. I was at a Broadway show.

VERONICA:  You know what, if you could only do it once, it might as well be the real deal. That’s right. So, kudos, you have retired. Walk of Fame. Star in the Walk of Fame.

JENNIFER: Yeah, and to everyone’s delight, I have retired from my singing career.

VERONICA:  Yeah, you’re nodding your head vigorously over there.

JENNIFER: Yes, it’s true. I mean, we do things every day and you may not even realize you’ve signed a waiver or there’s a silent waiver, but there are so many activities in our daily lives. I was just thinking about this the other day.

VERONICA:  Like what?

JENNIFER: Riding a scooter is one of them. Or going to an amusement park or buying a ticket to a haunted house. I mean, almost any activity that involves any kind of physicality, or going to a public park in Georgia as well.

VERONICA:  Wow. So, here’s the thing. I am one of these people who takes the paper and I’m like going over.

JENNIFER: We want you to have fun. We just want you to be aware of the risks involved in the activity or participating in. We want you to make sure that you’re aware of what could potentially happen. And then you need to determine whether that activity’s worth it or not to you.

ELLEN: So that’s an interesting… Yes and no. So, after the pandemic started, I’m sure everybody, especially in Georgia and in other states, but the Georgia legislature passed a law that you could not bring a claim against a business for contracting COVID-19 in the business.

VERONICA:  Yeah, I would think… and theme parks, you said, was another one. Like, is it like the sign on the ticket window or something that says warning, be careful, or whatever it is, or…

JENNIFER: Sometimes, and more often than not, it’s on the back of the ticket you purchase.

ELLEN: Quote unquote, right? Terms and conditions that say you cannot proceed unless you check the box. Well, you can click on the word terms and you can click on the word conditions, but most people don’t do that. They just click on the box because they think, oh, I’m just buying a ticket to an amusement park, right? And that’s where that’s where it gets you.

VERONICA:  Should I always sign a waiver?

JENNIFER: Well, that’s dependent. I would read the waiver. And there’s no harm in trying to cross it out or saying you’re not going to sign it.

VERONICA:  Now, I want to ask you before we move any farther. What is… what I can expect a waiver to reasonably cover when I’m signing my name on the dotted line? We’re going to get into that straight ahead.

You’re listening to our podcast, Lawyers in the House with Montlick. Join us 8 a.m. every Sunday if you want to listen live on 95.5 WSB.

VERONICA:  Hey, hey, welcome back to the house. You are in the house.

JENNIFER: Well, we don’t know. It depends on the waiver is the answer. You need to call us so that we can find out at 1-800-LAW-NEED.

VERONICA:  Yeah, like I noticed how you said in Georgia because this could vary state to state. You probably have seen waivers from different states in the cases that you take, right? And some of them are different?

ELLEN: That’s right, that’s right. I had a case actually out of state in Tennessee where I had two clients who were children who had been injured at a water park and their grandmother had signed a waiver when she checked into the water park.

VERONICA:  Under the otter’s…

ELLEN: They were under the yeah, under the happy arm, right? And so, the lifeguard waved them onto the ride, and they got hurt. And so, the law does vary state by state. You know, interestingly enough, in Tennessee, the law says that a parent by signing a waiver waives their right to go after medical bills because a parent is responsible for the child’s medical bills; but a parent cannot wave a child’s right to recover for pain and suffering. That’s different in Georgia. It’s different in Alabama.

VERONICA:  Can I cross stuff out?

JENNIFER: And sometimes, if you cross it out, it says that it will be null and void, but we don’t know if that’s actually true. So, we need to take a look at it if you have crossed it out.

VERONICA:   I may not have signed away my rights, the moral of the story: call Jennifer and Ellen, right?

ELLEN: That’s right.

VERONICA:  All right, coming up on Lawyers in the House, let’s take a look at some of the language in these waivers- go through one and see just exactly what it does and does not do. This is Lawyers in the House with Montlick on WSB.

You’re listening to our podcast, Lawyers in the House with Montlick, join us 8 a.m. every Sunday on 95.5 WWSB.

ELLEN: That’s right. And the other thing, too, is that a lot of this is written in lawyers speak, right? And so even if you were to stop and read it when you sign up, it uses words like indemnity or gross negligence or these sort of vocab terms that you may not understand. And so, it’s important to read through and try to figure out what they’re talking about before you sign it.

VERONICA:  That’s crazy. I’m no lawyer.

JENNIFER: Right, and it can be very confusing. Sometimes you have to read it a few times to actually understand the sentence, or like Ellen was saying, assumption of the risk.

JENNIFER: But you did an excellent job of reading that. And then responding accordingly, if only we were also smart and so wise, but that’s excellent.

VERONICA:  Thank you. Do my little hands emoji. I did that. So, let’s go through some of these terms, for real, you guys. Binding versus non-binding arbitration and waving the right to a trial by jury.

JENNIFER: Arbitration is where there’s an arbiter or a third party. It could be one person, it could be a panel of people that usually the company picks the company whose activity you’re participating in. So, let’s just use the escape room as the example. The escape room picks this panel or this person. And they decide your case. So, if you are injured, then you go in front of the arbiter or arbiters to decide what you would be entitled to instead of going to trial and instead of having a jury of your peers decide what you would be entitled to.

ELLEN: Sure. So, if it’s binding arbitration, it means that you go, the arbiters or the arbitration panel makes the decision. And then you’re stuck. That’s it. I have had conversations with people who have called in to 1-800-LAW-NEED and who have said you know, well, I’ll just go sue them. And I’m like, well, you can’t. Because you agreed that you won’t sue them. You’re bound by this arbitration and by the agreement or by the decision that’s made at arbitration. Non-binding arbitration is different.

VERONICA:  I gotta fly?

ELLEN: …out to California.

VERONICA:  On my own dime?

ELLEN: On my own dime, right? To go to this arbitration.

VERONICA:  Come on.

ELLEN: So, there’s lots of hurdles. One thing to point out, though, is that all waivers generally are just for that business.

VERONICA:  Okay, so let’s use… I had a friend, a dear friend who was in a zipline accident. And we can get into that. It actually turns out that it was negligence on the part of her accident because she wasn’t strapped in correctly.

JENNIFER: Yeah, if the product itself fails, that’s a potential products liability case. And so, the ziplining company that you go to in the mountains, they can’t waive the liability for the company that makes that harness or that zipline. So, if that fails and there’s a product defect there, you may have a product liability case, even though you signed a waiver for the ziplining company.

ELLEN: And it may not be obvious. In the escape room scenario, you may slip on a puddle of water and think, oh, well, I waived my right. Well, what if the escape room people have a company that comes into clean?

VERONICA:  It’s interesting because so my friend had to… and I just… you know, hats off to her because she really had to advocate hard for herself in order to even get a copy of this waiver that she signed. And this is a company that operates in multiple states.

JENNIFER: Right, and that’s important. And that’s why it’s so important to call us.

VERONICA:  All right, let’s talk about, I think maybe this goes right into my friend’s… waiving pursuit of bodily injury and inherent risk, or are we saying, okay, I’m getting on a zipline. I know it’s risky because I’m like above the treetops. So, if I fall and get hurt, you know, no harm, no foul on you guys, my bad.

VERONICA:  Like if it’s $39.95?

ELLEN: Yeah, you’ll never be made whole.

JENNIFER: That’s right.

ELLEN: This is incredible. Have you had cases where you had to get around something like that? And sort of argue that down?

VERONICA:  Why would they…? Would they know that the law may be like… I don’t even know where this came from. But let’s say if it was in Georgia, how can you put that in a waiver when the state… when it’s against state law?

VERONICA:  It might be, that’s a very good point.

ELLEN: It depends.

VERONICA:  All right, let’s talk about- oh my God, death and dismemberment. Yeesh. Death and dismemberment? That’s a lot.

JENNIFER: I’ve seen that for a flu vaccine in a waiver. I had a friend who went to get a flu shot and they gave him a waiver and it said, I’m waiving my right to sue the doctors, even in the case of death and dismemberment.

VERONICA:  Who does that? I got a flu shot and I didn’t have to sign anything.

ELLEN: Or did you?

JENNIFER: Yeah, exactly.

ELLEN: Seriously, did you check on a little screen?

VERONICA:  I was at my doctor’s office. Would that maybe be different?

JENNIFER: It could be. Like at a pharmacy, you know, you sign on that electronic pad, and you might be signing something you’re not, you’re not aware of. But he didn’t, he told the doctor he didn’t feel comfortable signing it, but here’s the option: the doctor then made him leave.

VERONICA:  So, it’s just what you were saying earlier. You run the risk of not being able to do whatever it is you came to do.

ELLEN: That’s right, but you have to weigh the greater risk. Right. I hate to be a curmudgeon. There are a lot of things I do not let my kids do. And we get invitations to birthday parties at, you know, different adventure places and I look at the invitation and I say to my husband, we’re not going because I think that’s too dangerous.

VERONICA:  What about a petting zoo? Or a hayride. How dangerous is that?

ELLEN: I mean, I think it depends.

VERONICA:  So just by walking in because they had a sign posted? Like when we go out to dinner.

JENNIFER: Yes. Kind of. But it has to be a specific activity. In the agritourism.

VERONICA:  Yeah, dinner is not agritourism.

VERONICA:  Not even think. So, climbing on a horse then is considered like the equivalent of a silent waiver.

VERONICA:  I really think it’s important to bring up something that you said earlier in the show. We need to think about going ahead. I need to personally think about it. If I’m taking my grandnephew somewhere, is it okay for me to sign a waiver for him going somewhere? That is, I think that’s one of the things that’s going to stick with me after this show is over.

You’re listening to our podcast, Lawyers in the House with Montlick.

VERONICA:  Did you sign away your rights if you signed a waiver somewhere and got hurt? That’s what we’re talking about today on Lawyers in the House with Montlick. Welcome back if you missed any of these priceless legal gems from Montlick attorneys Ellen Forrester and Jennifer Fleming make sure that you log on to LawyersintheHouse.com.

JENNIFER: Right. And there’s a reason for that. A lot of cases when you’re involving a company, their settlement agreements involve what’s called an NDA, a non-disclosure agreement, or a non-disparagement agreement. And so that means you cannot speak about the terms of the settlement to anyone else. So therefore, you might not be aware of it, and the non-disparagement means you cannot disparage the company, meaning you can’t speak badly about them.

ELLEN: That’s right. I mean, it’s in the company’s best interest to do that. I understand why they do it. And they do this as a bargaining chip for the settlement. You know, we will settle with you if you will agree not to disparage us or talk about us online.

VERONICA:  It doesn’t help you? Really?

JENNIFER: Sometimes, too, non-disclosure agreements cannot be upheld, so they have to be legally sound. So, there can be an out for that as well. Just like a waiver, it’s a contract. So that’s also something to take a look at. But it’s also something to be mindful of that it might be in there.

VERONICA:  Is an NDA kind of its own sort of waiver?

JENNIFER: Potentially the clause in the contract.

ELLEN: Don’t count yourself out if you’ve signed a waiver and you get hurt, you should always, always, always call us at 1-800-LAW-NEED. And the biggest takeaway, I think, for all of this, is have fun, but be a really good consumer of adventure. Ask yourself, is this safe enough? Are the risks here worth the reward?

JENNIFER: And get a copy of the waiver.

VERONICA:  And you know what? Side note: my friend had to sue to get a copy of her waiver. I bet they were keeping it under wraps just FYI. Never give never, never, never, never, never, ever, ever, ever give up.

ELLEN: That’s right.

JENNIFER: That’s right.

VERONICA:  All right. Lawyers in the House with Montlick, thank you so much to Jennifer Fleming and Ellen Forrester for being here with me, your host Veronica Waters on Lawyers in the House with Montlick, we will see you next time. Peace out.