Our Chicago brain injury lawyer was not surprised to come across an article by MSNBC regarding the use of disclaimers in athletic waivers. Athletic waivers are typically used when a child wishes to participate in athletics at school or through another program. Before allowing a child to play, most schools require that he or she present written authorization from his or her parents. This authorization comes in the form of a waiver that is composed by the school and sent home with the student. The MSNBC writer who authored the article recounted how a friend came to him with one of these disclaimers that said, among other things, that by signing, students and parents acknowledged that the sport in question is dangerous and can lead to all manner of injuries or even death. What really gave our Chicago brain injury attorney pause, however, was a line near the bottom that stated that the signer understood that participation in the sport “may result not only in serious injury but a serious impairment of my future abilities...generally to enjoy life.”
What this piece of the disclaimer refers to is something that lawyers have come to know as hedonic damages or loss of enjoyment of life (LEL) damages. They refer to money paid by a defendant who is found liable for someone's injuries to compensate the victim for the lost ability to enjoy certain aspects of life. The idea comes from an economist named Stan V. Smith, who argued that people who are permanently injured lose more than just wages and the cost of medical treatment. Often, they lose their ability to engage in the things that once brought them pleasure. The example given in the article is an amateur musician who, due to her injuries, is no longer physically capable of playing her instrument. Although she has not lost any wages, she has lost an ability to enjoy life that she once possessed. Smith has argued that that lost enjoyment should be compensated. Such arguments have not fallen on deaf ears, and in fact, most judges agree that these are and should be compensable damages.
Unfortunately, parents do not always read these disclaimers closely enough to fully comprehend what their signature means. Sometimes, it is not until a sports injury actually occurs that parents really look at the language in that form, and for some, it may deter them from ever even trying to file a lawsuit. However, this language does not always mean the end of any possibility of recovery. Courts do not always allow for such a complete disclaimer of liability. Therefore, if someone is injured after signing one of these forms, he or she should still speak to an Illinois personal injury lawyer about whether or not the disclaimer is a valid waiver of rights. An experienced attorney will be able to determine whether or not the waiver can be challenged in court and whether it is likely to be upheld. An opportunity to recover for injuries should never be disregarded, especially where the injuries are severe enough to permanently impair the victim's quality of life.
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