Avoiding Ambiguity in a Waiver
By Doyice Cotten
This article was taken from Waivers & Releases of Liability 7th ed. and updated for SportWaiver.com. Click SportWaiver for a limited time special price on the book.
Courts in most states have ruled that to be enforceable, a waiver must clearly and unambiguously express the intent of the client to relieve the provider from liability for its negligence. Ambiguity is defined as doubtfulness, or doubleness of meaning and is said to exist when reasonable persons can find different meanings in the language.
The number one cause of failure of waivers to protect is ambiguity of meaning. The single, most effective way to insure that the waiver is clear and unambiguous is the inclusion of the clear statement that the purpose of the waiver is to protect the provider from liability for the negligence of the provider.
One often reads that the inclusion of the word “negligence” is desirable, and in some states, required. This is true, however “negligence” can be improved upon by specifying “ordinary negligence.” This eliminates any confusion that gross negligence might be included.
Even more effective in clearly stating the intention of the waiver is the inclusion of the phrase “ordinary negligence of the provider.” This leaves no doubt of the meaning: that what is meant is not the inherent risks, but the ordinary negligence of the provider: for example, LA Fitness International . Thus, the exculpatory language should read “I, on behalf of …, waive and release LA Fitness International from liability for any and all claims arising from the ordinary negligence of LA Fitness International.”
The courts in many states require that the waiver specify “negligence.” Others fall short of requiring the term, but strongly encourage its use – some stating that a waiver has a greater chance of protecting if it is present. The following table lists states that encourage or require its use. (Note: in some states, the courts vary from jurisdiction to jurisdiction. States are listed if the term is required in any jurisdiction within the state.)
State Law Regarding the Use of the Word “Negligence” Within the Waiver
The Use of “Negligence”
The Use of “Negligence”
South Carolina Vermont
New Hampshire New Jersey
New York Texas
- Court in Trail Ride Case Gives Advice on Preparing Waivers
- What Does Your Waiver Protect Against? Inherent Risks – Ordinary Negligence – Acts Greater than Ordinary Negligence
- Waiver Terminology (Part I)
- First Things First when Writing a Waiver
- Florida Waiver Law: Must the Waiver Include the Term “Negligence?”