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What to Know Before Signing a Pre-Injury Release

10/1/2019
Blog
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How Pre-Injury Releases Impact Your Personal Injury Claim in Florida 

Candi: It’s time to Take 5. Now You Know.

Candi: Here, in South Florida, we are very fortunate to be able to participate in numerous recreational, or adventure sports activities. It is becoming more common that operators are requiring participants to sign pre-injury releases. With us today is [personal injury] attorney Jack Hill of the law firm of Searcy Denney who will let us know what we need to do when you are asked to sign one of these releases. Welcome, Jack.

Jack: Thank you for having me, Candi.

Candi: Can you explain what a pre-injury release is?

Jack: Sure. A pre-injury release is a document that’s presented to a participant of an activity or an event which seeks to have that participant give up, in advance, their rights to bring a legal action or to hold the operator accountable if the operator’s negligence causes that participant injury or harm. It’s essentially giving up, potentially, your day in court if something should happen during that activity.

Candi: So, if someone is hurt or killed while participating in an activity as a result of someone else’s faults, can the pre-injury release prevent them from bringing a claim?

Jack: A pre-injury release can, if ultimately a court finds it to be enforceable, can prevent an injury party, or their loved ones, should their loved one be killed, from holding accountable the operator of the tour. Again, if the pre-injury release is found to be enforceable, ultimately by the court.

Candi: How would someone who’s reading the release know whether or not it’s enforceable?

Jack: It would be a great deal to ask a consumer to evaluate on the fly whether a particular release is going to be held enforceable or not. These contracts are parsed out word by word, paragraph by paragraph in court, with the idea of assessing whether it’s enforceable or not. So to ask a consumer to make that decision right then when they’re being asked to sign it right before they go on the boat, or right before they start the activity is a lot to ask.

You know, a lot of times we’ll have clients who will come to us after their loved one has been hurt or killed, and they’ll learn for the first time that there’s a pre-injury release that’s been signed, and potentially what the impacts are of it. And so, we have the knowledge and skill to try to convince the court and show the court why the language that was used was ambiguous, or unclear because these kinds of pre-injury releases are disfavored under the law, meaning courts don’t like enforcing them, because there’s strong public policy arguments that, you know, individuals should be responsible for the harm they cause. But there’s also a countervailing public policy that, you know, we value our freedoms and people are free to engage in contracts, provided that they’re not illegal or immoral. So there’s two competing public policies there, but ultimately it’s going to be a court’s decision about whether they apply.

Candi: And what if someone signs it without reading it?

Jack: Yeah, which is typically what happens, as you well know. You know, a consumer will be provided with one of these pre-accident releases and they’ll sign it without thinking about it, and without reading it, as part of a host of packets…you know a packet of information that they’re being provided. Unfortunately, that’s not going to be generally a defense. The law is going to presume that if you’ve been provided a document and that you’ve signed the document, that you’ve read it and that you’ve understood it. So you’re not going to be able to avoid the responsibility for the terms and conditions of that contract just because you chose, unfortunately, not to read it.

Candi: So what should someone do if they’re presented with a pre-injury release form to sign before participating in any activity?

Jack: An individual has to make a choice with the knowledge that, you know, “I may be giving up my right to hold this individual accountable if they don’t do their job correctly.” And they’ve got to make an individual choice about whether the participation in this event is worth bearing that risk. But, perhaps, more importantly, you know, the consumers have power. Right? And we have the power of the purse, and if consumers band together, and refuse to sign these pre-injury releases, the operators of these activities are going to have to make a decision. You know, are they going to forego the revenue that they would otherwise achieve because of this person’s participation, or are they going to yield to the wishes of the consumer and not require these potentially very, very troubling and damaging contracts to be signed by their customers?

Candi: Thank you, Jack, for providing our viewers with such helpful information.

Jack: You’re very welcome.

Candi: If you need legal information regarding your rights, just go to searcylaw.com.

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