How to Make Your Waiver “Conspicuous”

By Doyice Cotten

waiver-001Courts in many states require that to be enforceable, the exculpatory language of the waiver must be conspicuous. In a recent Texas case (Charbonnet v. Shami, 2013), the court discussed Texas waiver law (which requires that a waiver must satisfy their express negligence doctrine and must be conspicuous), making a number of suggestions as to what makes the waiver conspicuous.

The Texas court stated that a waiver “is conspicuous when it draws the attention of a reasonable person looking at the face of the document such that the person ought to notice it.” The court went on to clarify its meaning:

1)      When determining if the waiver is conspicuous, we consider:

  1. Whether the waiver is set off by a heading in capital letters and
  2. A different size, type, font, or color than the surrounding text.
  3. The document should be clearly identified as a waiver.

2)      They also examine whether the language in the body of the waiver is conspicuous by asking:

  1. Is the language in a different size, type, font, or color than the surrounding text of the same size, or:
  2. Is it set-off from the surrounding text by symbols or marks that call attention to the language.

3)      Waivers are often considered conspicuous:

  1. When the entire document is a single page, or
  2. When the language appears on the front side of the page and
  3. Is not hidden under a separate heading or surrounded by unrelated terms.

4)      Even single page documents are NOT considered to be conspicuous:

  1. When the text of the waiver is so small that it is illegible.

It is suggested that the reader examine any waivers currently in use. Do both the exculpatory language and the waiver in general seem to be conspicuous? Keep in mind that this article refers to Texas law, but these suggestions would strengthen a waiver in any state.