This Table is excerpted from the 7th edition of Waivers & Releases of Liability by Doyice and Mary Cotten.
Have you ever wondered “What is the difference between assumption of risk and a waiver?” What about “‘What exactly is the function of a waiver?” or “What does indemnification language do?” Well, this table will explain the differences in the three concepts and will help you to see why a good “waiver” really should include all three. For more helpful information on waivers, the authors recommend Waivers & Releases of Liability as an invaluable resource.
Three Causes of Injury
And the Effect of Risk, Waiver, & Indemnity Language in Each Case
| “Accident” (Inherent Risk) |
Negligent Act |
Extreme Act(Gross, Reckless, or Willful/Wanton) |
|
| What Caused the Injury |
Example:Participant injures his back while lifting weights on his own. | Example:Client trips over a loose wire running to a speaker placed in a hazardous location by aerobics instructor. | Example:Client slips on slippery floor in shower area following several reported falls & serious injuries in that area. |
| Fault of Provider |
No fault. Neither the provider nor employees did anything that caused the injury.No Negligence | Employee was careless and created a dangerous condition.
Negligence |
Provider knew of a significant dangerous condition and failed to take corrective measures.
Gross Negligence (or other Extreme Action) |
| Liability of Provider |
Provider is NOT liable if client assumed risk. To assume the risk, the client must be aware of the risk. | Provider and instructor are liable for injuries caused by the provider, its employees, or agents. | Provider is liable for extreme acts causing injury if provider had “notice” or condoned the act. |
| Protection Provided by:Assumption of risk
. . . . Waiver . . . Indemnity Agreement |
.Assumption of risk section provides evidence of knowledge of inherent risks, voluntary participation, & assumption of inherent risks.
. Waiver section can sometimes provide evidence of knowledge of the risks. . Indemnity agreement may shift liability for inherent risks from provider to another party. |
.None
. . . . Well- Written waiver section can protect provider in most states. . . Indemnity agreement may protect provider from liability for provider’s negligent acts by shifting the liability to another party. |
.None
. . . . None in most states. . . . Indemnity agreement will not protect provider from liability for extreme acts in most states. |