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Do signed waivers really hold any water in court?
Most average Joe's are used to signing off on waivers and contracts they never read. These waivers are often full of legalese freeing the company of any liability for its product or service. Do these waivers really hold any water in court, or does common sense always take precedence.
For example , say your sky diving instructor was drunk and injures you in a bad landing. Is he and his company completely free of any wrongdoing because of the 12 page waiver you signed before jumping?
On a similar note, why do not most businesses add these limitation of liability clauses to their contracts? If a prospect feels they have a legal right to your hard earned money because of a common mistake, then just do not sign that prospect on. I run my own small software service company and just plainly refuse my services to any prospect who questions why I have all 'Limitation of liability' clauses in my contracts.
What it boils down to is one cannot free yourself from liability for intentional or grossly negligent conduct. So in the case of the drunk skydiving instructor, the waiver will not apply if it can be proved he was grossly negligent. This can be done if other employees of his skydiving academy should have been aware of his drunken state or if he does not have the apppropritate licenses to practice skydiving instruction.
The law does its best to preserve the original intent of written agreements. No agreement would mean anything if it could be simply overturned by the customer claiming their state of mind did not allow them to understand it. One obvious exception is if the customer can prove the he signed the contract under conditions that amount to fraud or deceit.
Another less obvious exception to presumed understanding of a contract is what is known as unconscionable agreements. Most states in the USA states follow the objective theory of contract formation. What this means is a customer signing a contract/waiver will be judged to the same standard of what a hypothetical reasonable individual would have done, and understood, under the same circumstances. This applies regardless whether the customer read or did not read the contract they were signing their name to.1
It is irrelevant what the customer independently thought the contract meant. All that matters is what the hypothetical reasonable indivdual would have been expected to understand from the contract. Therefore any objective meanings from our hypothetical reasonable person takes precedence over what an individual customer subjectively interpreted the contract to say. Said in another way, common sense does take precedence over whatever is written in a contract so long as common sense is defined the way described .
1. Mike Jacobs