First Things First when Writing a Waiver

By Doyice Cotten

Many people and businesses rely on waivers to protect against legal liability for injuries resulting from negligent acts by the business or its employees. Some of those relying think waivers will always protect; others, more realistically, realize that waivers can protect under some circumstances, but not under others. The waivers in the following three sport and recreation waiver cases failed to protect for, essentially, the same error. Look for the similarities and check your waiver for that mistake.

Roer v. 150 West End Avenue Owners Corp, 2010 N.Y. Misc. LEXIs 6353. Plaintiff was injured in the basement gym of an apartment building. A loose ball was drawn under the treadmill belt, titling the treadmill and causing the plaintiff to fall and suffer injury. The waiver did not protect because it did not contain plain and unmistakable language specifying that the waiver protected against negligence of the Defendant. What do we learn? The waiver should always clearly state that the signer is releasing the provider from liability for injury resulting from the ordinary negligence of the provider.

Wycoff v. Grace Community Church of the Assemblies of God, 2010 Colo. App. LEXIS 1832. A 17 year-old was injured while snow tubing during a Winter Event sponsored by the defendant. The minor had signed a waiver of liability intended to protect the church from liability. The waiver signed by the parent, however, did not adequately warn the parent or inform the parent of the risks of the activity. In addition, the waiver was weakly worded and did not specifically say the parent was waiving liability for injury or negligence. What do we learn? The waiver should 1) warn the participant or parent of the specific inherent risks of the activity and 2) contain language releasing the provider from liability for injury resulting from the ordinary negligence of the provider.

Hague v. Summit Acres Skilled Nursing & Rehabilitation, 2010 Ohio App. LEXIS 5400. A 67 year-old lady rejoined a health club and did not receive instruction on the use of the treadmill. When attempting to stop the treadmill, she pushed the wrong button (because the machine was different from the one she learned on years ago). She fell and was injured. She had signed a waiver. The waiver, however, did not unambiguously relieve the club from liability for negligence; the waiver did, however, sufficiently warn plaintiff of the inherent risks of the activity. As a consequence, even though the waiver was not upheld, the health club won the case; the court ruled for the club based on primary assumption of the risk. Sometimes it is better to be lucky than good! What do we learn? 1) Don’t count on always being lucky. 2) Be certain the waiver clearly states that the signer is releasing the provider from liability for injury resulting from the ordinary negligence of the provider. 3) The waiver should 1) warn the participant or parent of the specific inherent risks of the activity.

You should notice some repetition in the What do we learn? sections of the case summaries. Reread the sections and check out your waiver.