By Doyice Cotten
Thousands of agreements which waive the liability of sport, recreation, and fitness providers are utilized each day; but not all waivers look alike. There are at least four commonly used formats for liability protection. Each format has advantages and disadvantages — consequently, the formats are not equally effective. In this post, I compare the formats so that the reader may decide if he or she is using the best possible type of liability protection.
The common formats are 1) the stand-alone waiver of liability, 2) the waiver of liability contained within another document, 3) the group waiver, and the 4) disclaimer of liability. Each format is explained below and summarized in the figure.
The stand-alone waiver is a document which contains exculpatory language by which the signer releases you, the provider, from liability for injuries resulting from your ordinary negligence. This waiver is sometimes referred to as a participant agreement because it can (and should) include other protective language as well. Other important language to include is: 1) information informing the signer of the common inherent risks of the activity — including the inherent risks or dangers in the activity and possible injuries that could result from them; 2) a statement by which the signer assumes those inherent risks; 3) a covenant not to sue the provider; and 4) an indemnification agreement. The agreement can provide additional protection by including a severability statement, venue, choice of law, and jurisdiction.
The waiver within another document is a commonly used format. Two common forms include 1) when the waiver language is found within a contract (such as a health club membership agreement) and 2) when the language is on an application/registration form to participate in an event such as a race. The exculpatory language in this format is usually brief and often includes only that language necessary to protect the provider from liability for provider negligence.
The third format, the group waiver, is frequently used by organizations such as recreation departments for competitions such as leagues or tournaments. The waiver generally appears at the top of a sheet of paper and has spaces below for signatures of team members. Because of limited space, the exculpatory language is often very brief; in addition, administration of this form is often problematic in that the person administering the waiver may be untrained (e.g., a team captain) and not understand the true function of the document. He or she might not give players an opportunity to read the waiver and simply tell the participants to sign it with no explanation or give an incorrect reason (e.g., team roster or participation application).
The final format, the disclaimer, is not actually a waiver. It is a statement by the provider disclaiming liability for injury (e.g., Management Not Responsible for Injury); it is unsigned and is not generally considered a contract. The main problem lies in the fact that the statement (whether on a posted sign or on the back of a ticket) may not be read or even seen by the participant. It is usually difficult for the provider to prove that there was a meeting of the minds between the provider and the participant — in other words, it is difficult to show that the participant was aware of the commitments intended by the disclaimer.
Carefully studying the figure above will give you a better understanding of the strengths and weaknesses of each format. More importantly, it will give you an idea of the likelihood that a particular format will be effective. Providers must sometimes compromise between degree of protection and convenience. Too much compromise can turn out to be expensive. Be certain you are adequately protected by your waiver.