Alexander “Sandie” Pendleton is an attorney in Milwaukee, Wisconsin, who helps recreational opportunity providers create and properly deploy precisely-crafted waiver and other agreements. He can be reached at [email protected].
By Alexander “Sandie” Pendleton
Forgoing the traditional signed paper waiver agreement, and using instead an online or electronic waiver agreement, is becoming very common, and courts in several states have enforced such waiver agreements. But there are pitfalls to be avoided in using such online agreements. Below are several suggestions that recreation providers should consider when designing or reviewing an online registration process:
- Ensure the wording you use is consistent with an online consent.
Although sometimes a participant is given the opportunity to take a stylus and make an actual electronic “signature” to confirm the participant’s acceptance of a waiver agreement, more often the procedure involves a participant checking a box on a webpage. If your procedure does not involve such a “stylus signature,” then you should ensure your agreement does not use words commonly seen in a paper waiver agreement (such as “by signing below, I agree”). Using such words could potentially result in a fight as to whether the term “signing” is ambiguous, and whether what the participant did was “sign.” Instead, eliminate the possibility of ambiguity by using words consistent with the exact method you are using to record the participant’s consent. For example, use the words “by checking the box below, I agree,” or “by checking the box below and entering my initials, I agree”).
- Create evidence that the participant reviewed the waiver agreement.
Your registration and consent process should be designed so it is difficult for an injured participant (or deceased participant’s estate), to later claim the participant wasn’t given the opportunity to review the agreement, or did not review the agreement. By all means avoid designing the registration process so that the terms of the waiver agreement are only accessed by clicking on a link, and permitting the participant to consent to the agreement without even clicking on the link. Also, avoid a process where the text of the waiver agreement is in a separate window, whereby a participant can (but need not) review the text by clicking on the text and scrolling through it. Instead, have a process whereby the whole text of the agreement is visible on the screen, and the participant must scroll through or down that text, before the participant indicates consent to the agreement. Also ensure that your “consent statement” includes language whereby the participant confirms he or she has read the text of the agreement, something like “I certify that I have reviewed all of the above terms of the Waiver Agreement, and by checking the following box, I hereby consent and agree to all of the above terms.”
- Email a full copy of the agreement to the participant.
Your registration process likely involves obtaining the participant’s email address, and you probably already are sending an email to the participant confirming the participant’s registration. Email a copy of the full “signed” waiver agreement to the participant. That way, you will later have evidence that you can point to which will help you explain to a judge that the participant was given ample opportunity to review the agreement. If a registration service you are considering using tells you it cannot send a copy of the final, consented to waiver agreement to the participant, find another registration service. Also, as you are testing the registration process, you (or you and your lawyer) should be asking “will this email to the participant, if it later becomes an exhibit in a motion for summary judgment, look reasonable, clear and understandable to a judge?”
Waivers administered via cell phone may be an issue! I think judges are very comfortable now with parties entering into contracts on a computer online; however, I’m not sure if we are there yet regarding cell phones. Give consideration, too, as to whether courts (often populated by judges advanced in age) will be comfortable with the “informality” of a registration process that involves a phone app, or waiver text that might be presented to the participant only on a very small cell phone screen (even if the user can vary the font size). So, if your registration process involves cell phones, being able to present to the court an emailed version of the signed waiver confirming the participant has consented to the terms of what to a judge looks like a traditional and reasonable waiver agreement may become important in the court’s analysis.
- Ensure there are not conflicting waivers.
It is not uncommon for recreational providers to use online registration services. And the procedure many online-registration services use involves two waiver agreements, one relating to you and your event (usually drafted by you), and one relating to the registration service (usually drafted by the service). Sometimes, those two agreements can overlap in their terms. That’s generally a bad idea. If a court finds a conflict in the agreements that a participant signs, that increases the chances that the court will find the provider’s waiver agreement unenforceable. Ensure that the two agreements are entirely separate. Your agreement should relate to you (and not the registration service), and the registration service agreement should relate to it (and not you). You should carefully review the registration service’s agreement to ensure it is not so overly broad that it applies to you. Refuse to work with a registration service that tries to take the position that it never makes any modifications to its online waiver agreement.
- Be careful about asking a participant to insert initials to indicate consent.
It is common these days for online registration procedures to ask a participant to enter his or her initials in a box, so as to “prove” that the participant consents to the waiver agreement. The consent statement might be worded as follows “By entering my initials in the following box, I hereby consent to all of the above terms of the Waiver Agreement.” But what if participant John Q. Public enters the letters “NOPE” in the box; if he does that, has he expressed his consent to your waiver? If you use such a “insert initials here” procedure, ensure that the registration is not accepted until the initials added to the box match the participant’s initials. Again, if your registration service tells you that can’t be done, find another registration service. Perhaps a better procedure than asking the participant to enter his or her initials, is to ask the participant to indicate consent by entering his or her whole name in a box. That more “formal” procedure may help to later convince a court that the procedure was one that emphasized to the participant he or she was entering into a formal legal agreement (i.e., an agreement that could have profound effects for the parties, if the participant is seriously injured and the waiver is enforced). But again, if you follow that procedure, ensure that the registration is not accepted until the name entered in the box exactly matches the name the participant has provided as part of the registration process.
- Ensure it is clear who is providing the consent, especially if the participant is a minor.
Verification of identity on the Internet can be challenging (or as the famous 1993 Peter Steiner New Yorker cartoon says: “On the Internet, nobody knows you’re a dog”). And long before the Internet arrived, kids have been forging their parent’s signatures on permission slips, confirmations and registration agreements. If your waiver agreement (be it a paper agreement or an online agreement) is filled out by a minor and signed by a minor, it is extremely unlikely that a court will enforce it. Because of such, it is essential that with all participants you ensure that you verify the participant’s age, and ensure that if you are dealing with a minor, that the waiver agreement is consented to on the minor’s behalf by the minor’s parent or guardian. (Better yet, get both parents’ signatures.) But when it comes to a waiver agreement (be it a paper agreement or an online agreement) that is not signed in your presence, that can be difficult to do. Know that you are taking a risk when you allow minors to register remotely for an event or activity. There are strategies to address this risk, and ensure the person you think is consenting to your waiver, is actually that person. For example, you can require that a remotely-signed waiver agreement relating to a minor be signed before a notary (who has verified the signer’s identity). Recently, many states have modified their notary act statutes, so as to allow notaries to provide notary services remotely (that is, they don’t have to be in the presence of the signer, when the agreement is signed—the identify verification, signing and notarization procedure can all be done online). In the future, we will likely see registration services that will incorporate such online notary procedures into their registration processes. Whether a particular event or activity requires the use of such “robust” confirmation-of-identity procedures will likely depend on the risk involved with the particular event/activity, and the trend in the cost of such online notary services. For a more complete discussion of ways to deal with the online identification problem, see Richard E. Smith, Authentication: From Passwords to Public Keys.
The above are just a few suggestions. For additional suggestions on the issues surrounding online waiver agreements and registration procedures, see Chapter Seven of Doyice & Mary Cotten’s Waivers and Releases of Liability (10th ed.).
And as indicated above, as a practical matter, anticipate that if you raise some of the above issues, online registration services are initially going to tell you “don’t worry about that,” or that “we can’t change our procedures.” The wonderful thing about the online registration process is the flexibility it can afford to recreational providers, provided the online registration service is willing to do some computer coding to change its “standard registration process.” Many courts disfavor the enforcement of waiver agreements, so if you want to optimize your chances of a court enforcing your waiver when a claim is made against you, you must be vigilant regarding not just the text of your agreement, but how it is deployed. You (or your attorney), will likely need to be persistent with registration services, and be ready to explain to them exactly why what you are asking for is important to your organization’s chances of later being able to convince a court to enforce the waiver agreements you use.
For other articles relating to this issue, see Doyice Cotten’s 2017 article Electronic Or Online Waivers: How Good Are They?
Photo Credit: Thanks to Image Catalog via Flickr.