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When Is a Waiver of Liability or General Release Enforceable?

If you sign a hold harmless and waiver agreement and are later injured you still might have a case.

The film "The Social Network" told the story of the start of Facebook and the lawsuit brought by Darien, Conn., residents Cameron and Tyler Winklevoss against Mark Zuckerberg.

In 2008, Facebook reached a settlement with three parties, two of which were the Winklevoss brothers, for $65 million. However, the twins wanted the court to set aside their settlement and subsequent release, requesting more money due to the increased value of the company.            

This week, The Circuit Court of Appeals stated that the twins could not undo the settlement and release they had signed in 2008.

Judge Kozinski wrote, "at some point litigation must come to an end. That point has now been reached." So what happens when a person signs a waiver or release of liability form, and is then injured after signing the document? Can the injured party still have a valid claim despite signing the waiver or release?

The answer, as is common in the legal arena, is maybe.            

In Furlani v. Town of East Lyme, 2010, a high school track student, who along with his parents signed a waiver, was later injured. As a result of a coach instructing sprinters inside of a school to finish running a 100 yard dash with their heads down,  Mr. Furlani was unable to stop and ran into the wall seriously injuring himself. The lower court found that the waiver did not release the defendants from their alleged negligence.

The Connecticut Supreme Court has consistently held that there is an important public policy consideration in promoting participation in recreational and athletic activities.

The Connecticut Supreme Court has voided exculpatory agreements in the context of certain recreational activities. For example in Hanks v. Powder Ridge Restaurant Corporation, the Court held that an exculpatory clause that purportedly released a ski resort from liability resulting from its own negligence violated public policy.

There are other instances in which a release or waiver might not be enforceable, which could include those signed by minors, those involving gross negligence or an act not anticipated by the parties, or other situations which are found to violate public policy.           

It should also be noted that a Connecticut General Statute Section makes unenforceable indemnity and hold harmless agreements in construction contracts which attempt to excuse a party from its own negligence. This statute applies to the construction, repair, alteration or maintenance of any building.

 Therefore, if you sign a release on a contract claim you may be barred from reopening it but if you sign a release of liability and are later injured you may still have a viable claim. All cases are fact specific and should be investigated.

Richard P. Hastings is a Connecticut personal injury lawyer at Hastings, Cohan & Walsh, LLP, with offices throughout the state.  He has been named a Connecticut Super Lawyer and is the author of the books: "The Crash Course on Child Injury Claims"; "The Crash Course on Personal Injury Claims in Connecticut"; and "The Crash Course on Motorcycle Accidents."  He can be reached at 1(888)CTLAW-00 or by visiting www.hcwlaw.com.

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