Pre-Injury Liability Waivers in Georgia
Likelihood of Enforcement: Strong
Georgia will enforce a well-written waiver for simple negligence as long as it is not void as against public policy. Flood v. Young Woman's Christian Ass'n of Brunswick, Georgia, Inc., 398 F.3d 1261, 1264 (11th Cir. 2005) Georgia treats waivers primarily as a species of contract, and thus the rationale around the enforceability of waivers is centered on broader concerns about the enforceability of contracts. Waivers are generally allowed because to prevent them would be to interfere with freedom of contract, which the state is strongly against doing. Lovelace v. Figure Salon, Inc., 345 S.E.2d 139, 140 (Ga. App. 1986).
Waivers which are not enforced are those that, as contracts, violate public policy. The court stresses that it must exercise extreme caution when declaring a contract to be against public policy and should only do so in cases which are free from doubt. Emory University v. Porubiansky, 282 S.E.2d 903, 904–05 (Ga. 1981) As such, a contract (and thus, a waiver) is said to violate public policy only under three conditions: first, if it is declared to do so by the Georgia General Assembly, second, if it is in contravention of the law, or third, if it is “entered into for the purpose of effecting an illegal or immoral agreement” Hall v. Gardens Services, Inc., 332 S.E.2d 3, 5 (Ga. App. 1985)
Georgia requires that waivers must be “clear and unambiguous,” but does not require that waivers include the word “negligence” to be valid. Flood, 398 F.3d at 1265. The court will presume that signatories to a contract have read and understood the contents therein. My Fair Lady of Georgia, Inc. v. Harris, 364 S.E.2d 580, 581 (Ga. App. 1987)
Georgia law permits parties to exempt themselves by contract only from simple negligence claims, and does not recognize waivers which purport to waive claims of gross negligence. Flood, 398 F.3d at 1266.
While there appear to be very few cases of waivers signed by parents on behalf of children that appear before the Georgia courts, those courts have, on at least one occasion, upheld the validity of such a waiver. Mays v. Valley View Ranch, Inc., 730 S.E.2d 592, 599 (Ga. App. 2012). In Mays the fact that the waiver was signed by a parent on behalf of their child played no role in determining its validity.
Last updated: 12/2018
This assessment of the enforceability of waivers has been prepared by non-lawyer law students and does not constitute legal advice.