By Doyice Cotten

Where there are fitness, recreation, and sport activities, there are injuries! Unfortunately, where there are injuries, there are lawsuits! Providers of these activities must take care to manage risk in three ways.  First, the provider should institute a sound risk management program which includes an approach toward reducing the likelihood of injury as much as possible.  Secondly, they should purchase financial protection through liability insurance. Third, they should use an agreement by which the client agrees to relieve the provider of liability for participant injury – the document should include an assumption of risk (for inherent risks), a waiver of liability for provider negligence, and an agreement to indemnify the provider for loss.

Injuries in fitness, recreation, and sport activities arise from three sources.  They result from either 1) accidents due to the inherent risks of the activity, 2) negligence (errors or mistakes) of the provider, co-participants, or others, or 3) extreme actions such as gross negligence or reckless actions. Generally, the provider is not liable for injuries resulting from the inherent risks of the activity providing the participant is aware of the risk, however, they are held liable for injuries resulting from their own negligence. A well-written waiver can protect the provider from liability for injuries to adult participants caused by provider negligence in most states. A waiver generally does not protect the provider from liability for injuries caused by extreme actions that involve gross negligence or  recklessness by the provider

Liability waivers, contrary to misconceptions of providers in the past, can be effective in protecting providers from liability for injuries resulting from the negligence of the provider.  Waivers are inexpensive to obtain, easy to administer and store, and can help protect providers from the consequences of their own mistakes.

What is a Waiver?

Legal terminology can sometimes be confusing. A waiver is a contract between the service provider and the participant signed prior to participation by which the participant agrees to absolve the provider of any fault or liability for injuries resulting from the ordinary negligence of the provider, its employees, or its agents. The agreement relieves the provider of liability for injuries resulting from mistakes, errors, or faults of the provider and, in effect, relieves the provider of the duty to use ordinary care in providing for the participant.

The reader, however, will often encounter other terms such as release, disclaimer, and exculpatory agreement.  These terms are usually used synonymously with waiver and while there are minor differences, they are usually referring to the same type of agreement. Another common document is the informed consent agreement. Although some erroneously use it instead of a waiver, the informed consent is a different type of agreement. It is used to protect the provider from liability for the informed treatment risks of a treatment or program to which the individual agrees to be subjected (e.g., medical treatment, therapy, experiment, training program). In general, they are used when something is “done to” the individual.  These are used in medicine and research and have recently been used by personal trainers.

Does a Waiver Work?

The answer to this is Yes and No.  Waivers do protect the provider in most states, but not all.  In states where they work, they usually work under certain circumstances, but not all.  A number of factors can cause a waiver to fail. Some of these include: 1) When the service is an essential service or of public interest (e.g., medical care, electric or water service); 2) When one party has superior bargaining power over the other (e.g., teacher-student, employer-employee); 3) When the conduct is beyond ordinary negligence (e.g., gross negligence, reckless conduct, intentional acts); 4) When the waiver is to relieve one of a statutory duty; 5) When the waiver is not clear and unambiguous in its intent; 6) When fraud or misrepresentation is involved.

Waiver law is state law and, as such, differs greatly among states. Table 1 lists the states and the author’s estimate of the likelihood that a reasonably good waiver would be enforced by the courts in that state.

From Figure 1, one can see that in most states, a well-written, properly administered waiver, voluntarily signed by an adult, can provide service providers with protection from liability for injuries resulting from the ordinary negligence of the provider, its employees and its agents. It is important that the reader remember three things about the above classification of the states:  1) although the classification is based upon about 1500 waiver cases, the ratings are subjective and subject to disagreement among experts; 2) the law in each state is always subject to change (One new state supreme court decision could change the classification of a state overnight); and 3) regardless of the likelihood of a waiver being enforced, it is suggested that service providers seeking protection from liability in all states utilize a waiver. Why??? Courts can change with time and with the change, there can be a change in attitude toward waivers. Also, while states classified as EXCELLENT generally have fewer requirements for enforcement than POOR states, waivers can fail in each category and occasionally a waiver will be enforced in even the POOR category. In the FAIR and GOOD categories, a good waiver is usually or often enforced.

Figure 1

Likelihood of Courts to Enforce a Liability Waiver

For Adult Participants

POOR	FAIR	GOOD	EXCELLENT
Arizona	Alaska	Alabama                New York	Admiralty Law
Connecticut	Arkansas	Florida                   North Carolina	California
Hawaii	Delaware	Idaho                     Oklahoma	Colorado
Louisiana	Maine	Illinois                   Pennsylvania	District of Columbia
Virginia	Mississippi	Indiana                  Puerto Rico	Georgia
Wisconsin	Nevada	Kansas                   South Carolina	Iowa
	New Hampshire	Kentucky               South Dakota	Michigan
	Oregon	Maryland               Tennessee	North Dakota
	Rhode Island	Massachusetts        Texas	Ohio
	West Virginia	Minnesota               Utah
		Missouri                 Vermont
		Montana                 Virgin Islands
		Nebraska                Washington
		New Jersey             Wyoming
		New Mexico

 

Why do Some Waivers Fail?

In any state, a waiver can fail for a number of reasons. A few of these reasons are explained below.

Language Requirements. The most common reason that waivers fail is because they are poorly written. A key guideline required in all states is that the waiver language be clear and unambiguous. If the waiver does not clearly specify the intent of the parties to release the provider from liability for negligence, the court will not enforce the waiver.  Note, however, that what is considered clear and unambiguous varies from state to state.  For instance, some states require the waiver to state that the signer is releasing the provider from “negligence” and must include the word “negligence.”  Courts in other states do not require, but strongly encourage the inclusion of the term. Still other states simply say that as long as the intent is clear, the specific language is unimportant and accept such language as “release from any and all claims.”

Extreme Acts. Courts in most states enforce waivers of liability only for “ordinary negligence.”  Courts in these states hold that enforcement of a waiver when the action resulting in the injury was gross negligence, reckless conduct, willful/wanton conduct, or an intentional act is against public policy.

Unequal Bargaining Power. Waivers are not generally enforced if one of the parties has a clearly dominant bargaining position.  Examples would include a coach requiring a waiver of his players, a teacher and a student, and an employer and an employee. Courts generally hold that recreation, fitness, and sport waivers do not involve a clearly dominant position (e.g., health club waivers, waivers for a rafting trip, waivers to go into the pit area of a racetrack, waivers for skiers, and waivers to play recreational softball in a municipal or church league). Courts generally hold that such activities are optional, the participant does not have to participate, the participant can participate in another activity, and the participant can go to another provider – hence, there is no advantage in bargaining position for the provider.

Conspicuous Language.  Most courts feel that it is important that the waiver language be obvious to the signer.  Preferably the waiver should be on a sheet to itself.  This removes the argument that the signer did not know what he or she was signing.  On the other hand if the waiver is included in the middle of the membership contract or on an entry form containing other information, the signer is apt to claim he or she failed to realize that he or she signed away important legal rights. This problem is compounded when the waiver section of these documents is not highlighted and set off in some way.  Emphasizing the waiver section by using larger print size, a subheading, bold print, or placing it in a box would help (and is required in some states). Failure to do this can result in an unenforceable waiver.

Inherent Risks. Waivers sometimes fail for failure to list the inherent risks of the activity.  Courts in some states now require that the inherent risks of the activity be listed. This actually works to the advantage of the provider because including the inherent risks in a waiver provides evidence that the signer was aware of the inherent risks of the activity and assumed those risks.  One caution – keep all discussion related to the inherent risks in a separate section so that the signer will not confuse inherent risk with the negligence risks.

There are many other factors that can cause a waiver to fail – too many to address in this article. But the reader should remember that waivers can protect in most states and it is worth the effort to develop a good waiver and use it for protection.

What if the Client is a Minor?

This question was easier to answer 30 years ago.  At that time, the advice from this author was “Do not use waivers with minors.  Waivers signed by minor or by parents on behalf of a minor are not enforceable!”  Fortunately for providers, this is not always the case.  The law has changed in many states.

It is still true that a waiver signed solely by a minor is unenforceable and provides no protection for the provider.  However, one can see in Figure 2 that in several states, one or more parental waivers have been enforced or there are statutes to that effect.

Figure 2

Parental Waiver Law by State

 

Courts Do Not Enforce  Parental Waivers	Insufficient  Information to Predict Enforcement Of Parental Waivers	Courts Have Enforced Parental Waivers for Commercial or Non-Profit Entities at Least Once
AL     AR     CT	AZ     DC    GA	AK      CA     CO
FL      HI      IA	ID      KS     KY	DE       FL      IN
IL       LA     ME	MO    MT    NE	MA      MD    MN
MI      MS     NJ	NV     NH    NM	OH       NC     ND
NY     OK     OR	PR      SC     SD
PA      RI      TN	VT      VI     WY
TX     UT      VA
WA    WV    WI

 

NOTE: Wisconsin and Connecticut have enforced parental waivers, but later state supreme court rulings make them unlikely to be enforced in the future.

NOTE: In addition, AZ, GA, FL, HI, IL, IN, KY, MN, UT, and VA allow parental waivers for either motorsports competition or for equine activities.

So, what if the client is a minor? There is no downside to using a waiver with a minor client.  Have a parent (preferably both) sign the waiver. If it is not upheld, it still helps with a primary assumption of risk defense – provided you spell out the inherent risks of the activity.

 

Recommendations for Using Waivers

Waivers can be a powerful risk management tool available to service providers; combine it with liability insurance and a continuous program focusing on the prevention of the injury. Though it is often difficult for recreation, fitness, and sport providers to understand, WAIVERS CAN PROTECT THE PROVIDER FROM LIABILITY EVEN WHEN THE PROVIDER IS NEGLIGENT.  In conclusion, a few key points to remember include:

• Use waivers even in states in which the courts have held that they are not enforceable.  They may help establish a primary assumption of risk defense.
• Do not copy a waiver from a book or article and do not borrow the waiver of a friend who uses one. To be effective, the waiver should be written and designed specifically for your business and your program by a person who understands both waivers and your sport or activity.
• Store your waivers in a safe place and keep them for years – how many depends on the statute of limitations in your state.
• Learn all you can about waivers (the best single source is the book, Waivers & Releases of Liability 9^th edition, available from the author) and try to keep up with waiver law in your state.

Related:

• Waiver Terms and Definitions