Waivers and releases are common documents. People sign them before recreational activities, before using gyms and fitness facilities, and as part of many contracts. When a person later dies in connection with the activity covered by such a document, a question arises about whether the signed waiver affects a wrongful death claim. Georgia law treats this question with several distinct principles. This guide explains how a signed waiver or release can affect a wrongful death claim in Georgia.
Two Kinds of Documents
It helps to separate two kinds of documents that are sometimes both called a “waiver.”
The first is a pre-injury liability waiver, also called an exculpatory clause. This is a document signed before any injury occurs, in which one party agrees in advance not to hold another party liable for future negligence.
The second is a post-death release or settlement release. This is a document signed after a death, typically as part of resolving a claim, in which a person with a claim agrees to give up that claim, usually in exchange for payment.
These two kinds of documents are governed by different rules and have different effects on a wrongful death claim.
Pre-Injury Liability Waivers in Georgia
Georgia generally recognizes pre-injury exculpatory clauses as enforceable. Georgia courts have held that a party may, by contract, relieve itself from liability for its own ordinary negligence, and such a clause is not automatically void as against public policy.
There are, however, important limits. O.C.G.A. Section 13-8-2 reflects the principle that certain agreements are unenforceable as against public policy, and that statute specifically addresses construction contracts that attempt to indemnify a party against its own negligence. Georgia courts have also held that an exculpatory clause may be unenforceable when it affects the public interest or when there is an obvious and substantial disparity in bargaining power between the parties. To be enforceable, an exculpatory clause generally must be clear, unambiguous, and explicit.
Georgia courts have also recognized that a pre-injury waiver does not shield a party from liability for gross negligence or willful and wanton misconduct. A waiver of ordinary negligence does not automatically extend to that more serious conduct.
How a Pre-Injury Waiver Can Affect a Wrongful Death Claim
The impact of a pre-injury waiver on a wrongful death claim turns on the relationship between the waiver and the claim.
A wrongful death claim in Georgia is a statutory claim that compensates the surviving family for the loss of the decedent’s life. A recurring legal question is whether a waiver signed by the decedent can defeat a claim that, by statute, belongs to the surviving family members rather than to the decedent. Courts in various states have reached different conclusions on this point, and the analysis can depend on the wording of the wrongful death statute and the specific waiver. In Georgia, the enforceability of a decedent’s pre-injury waiver against a wrongful death claim brought by survivors is a fact-specific question that depends on the language of the document, the activity involved, the type of conduct alleged, and the controlling case law.
By contrast, a survival action stands in the place of a claim the decedent could have brought personally. Because that claim derives from the decedent’s own rights, a valid pre-injury waiver signed by the decedent is more directly relevant to a survival action, since the decedent could have been bound by it.
Georgia courts have enforced clear pre-injury waivers in cases arising from recreational and fitness activities where the document was found to be unambiguous and not contrary to public policy. Whether a particular waiver bars a particular claim depends on these specific considerations, and the analysis differs depending on whether the claim is a wrongful death claim or a survival action.
Post-Death Releases and Settlement
A release signed after a death operates very differently from a pre-injury waiver. A post-death release is generally part of settling an existing claim. When a person who holds a wrongful death claim signs a valid release in exchange for a settlement, that release ordinarily extinguishes the claim against the released party.
This raises a particular issue in wrongful death cases because the claim may belong to more than one person or may be held by one person for the benefit of others. Under O.C.G.A. Section 51-4-2, a surviving spouse holds the wrongful death claim on behalf of the spouse and the children together. Georgia law and Georgia courts have addressed the authority of the person holding the claim to settle and release it, and the protection of the interests of children and other beneficiaries. Where minor children have an interest, courts give particular attention to the approval of settlements because minors cannot release claims on their own.
O.C.G.A. Section 51-4-2 also addresses the effect of a release of the wrongdoer, and the statutory framework recognizes that a release given by the proper party can affect the claim. The precise effect of a post-death release depends on who signed it, what authority that person had, which beneficiaries are involved, and whether any required court approval was obtained.
Practical Summary of the Legal Framework
The impact of a signed waiver or release on a Georgia wrongful death claim depends first on which kind of document is involved.
A pre-injury liability waiver may be enforceable in Georgia for ordinary negligence if it is clear, unambiguous, and not contrary to public policy, but it generally does not cover gross negligence or willful misconduct, and its effect on a wrongful death claim brought by survivors is a fact-specific question that can differ from its effect on a survival action.
A post-death release given as part of a settlement can extinguish a wrongful death claim when signed by the person with authority to release it, subject to Georgia rules protecting the interests of children and other beneficiaries and, where applicable, requiring court approval.
Because both the enforceability of waivers and the effect of releases depend heavily on the exact language of the documents, the nature of the conduct alleged, the identity of the beneficiaries, and the controlling Georgia case law, the impact in any specific situation is determined by those particular facts and the current state of Georgia law.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how Georgia law works as a matter of public legal education, and it does not constitute legal advice, a legal opinion, or a recommendation about any particular course of action. Reading this article, or contacting the website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author.
The law changes over time. Statutes, regulations, court rules, and judicial decisions discussed here may have been amended, repealed, superseded, or reinterpreted after the date of publication, and citations to specific code sections or cases reflect the law only as it was understood when this article was written. The application of any legal principle also depends heavily on the specific facts and circumstances of an individual matter, and outcomes vary from case to case.
For these reasons, no one should rely on this article as a substitute for advice from a licensed Georgia attorney who can review the particular facts involved. The author and publisher make no warranty, express or implied, regarding the accuracy, completeness, timeliness, or applicability of the information provided, and disclaim any liability for any action taken or not taken based on this content.