DerryNews.com, Derry, New Hampshire

November 29, 2012

A note signed before fighting is a worthless waiver

About the Law
Andrew Myers

---- — I’m having major issues, shall we say, with a guy. Can I ask him to fight me in a gym and tell him to sign a waiver so I don’t get in trouble for hurting him if he accepts?

I can’t think a slug fest is the best way to resolve anything. So, I hope by the time you see this answer you reconsider. But, let’s analyze the legal issues raised by the question you ask.

A waiver against liability for committing a crime is without question void as against public policy. A waiver of liability for committing an intentional civil assault is voidable.

Finally, even those who attempt to employ waiver as a defense against negligent acts find that such agreements are subject to being voided on many grounds.

The answer to your question is that you “can” have anyone sign anything. But the document you propose is an invalid piece of paper. It would have little, no or at best, doubtful legal effect.

My wife had a trial in an accident case and the defendant was found to be negligent. But no money was awarded. What can be done about this?

She has suffered both as a result of this accident and some medical conditions that were not bothering her before, but which have caused problems since her accident.

The jury gave no monetary compensation because of this. If a jury finds the defendant negligent in a personal injury case, doesn’t it have to award damages for medical bills and pain and suffering?

A civil jury can return a verdict finding negligence on the part of the defendant, but find that there are no causally related damages.

Causation is the most overlooked element in negligence cases. In other words, it is not enough to claim that the defendant (1) committed a negligent act, or what is called breach of duty; (2) there are damages; and (3) the defendant must pay.

Numbers one and two must be tied together with a link of causation. This seems so simple and obvious that it is often overlooked. Juries are instructed in detail on the elements of negligence. So, they go over the evidence and if causation is missing, this is a possible verdict.

The link of causation is closed most of the time with medical testimony.

You must review the next steps with your attorney ASAP because there are very short, absolute deadlines on post-trial motions and on notices of appeal. Only the attorney who tried the case can make the determination as to the best approach.

Someone wants to challenge another to a fight and have the person sign a waiver beforehand. That's worthless.