By Doyice Cotten
President Ronald Reagan once said that his Democrat friends knew a lot, but that what they knew was wrong. Even if you don’t agree with the President, it is true that people signing waivers and people running sport/recreation-related businesses today know a lot more about waivers today than they did 25 years ago. That is true, but a lot of what they know is not accurate.
Here are a few frequently-held misconceptions about waivers.
- Waivers do not work! People who say this are misinformed. A good waiver can “work” (i. e. protect the business from liability) in all but a few states. It is important to note that waiver law is STATE law and so what makes a “good” waiver varies by state.
- FACT: A well-written waiver voluntarily signed by an adult will help protect a business from liability for ordinary negligence in most states.
- Waivers always work…. Also false. There are a few states where waivers are never enforced. And, as I just mentioned, if a waiver is not well-written or if it does not meet the requirements set by the courts of that state, it will fail to protect.
- FACT: A waiver that was enforced by the courts of one state may NOT protect when used in another state.
- Waivers never work when the injured party is a minor! Again, waiver law varies by state. In some states, a well-written waiver signed by a parent will protect even if the injured party is a minor.
- FACT: Waivers for minors (even when signed by the parent or guardian) will not protect the business from liability for negligence in most states. Courts enforce these waivers in only about 12 to 15 states.
- If my waiver is written by an attorney, it will protect me! Sorry, but most of the waivers that fail were written by attorneys.
- FACT: Using an attorney gives you your best shot at protection, but be certain your attorney 1) has experience writing liability waivers, 2) knows the waiver law in your state, and 3) has some knowledge about your sport or recreation business.
- If a waiver was enforced by a court, I can copy it and be confident it will protect my business!
- FACT: Not necessarily true. First, was it in your state in which it was enforced? Were the circumstances identical? (For instance, was it enforced for an adult patron and you have an injured minor.) Is it the latest waiver decision? Is the business involved EXACTLY the same as yours? The exact same waiver was used in three California cases. It was enforced in two of the cases, but not in the third.
A waiver is a waiver. You can copy a waiver from the Internet or from a book. This saves money and provides protection!
- FACT: To be effective, a waiver must be tailored to your situation. Factors like who it protects, from what risks, and many more factors that you never thought to include. Plus, does it conform to the law in your state?
- And what is maybe the biggest misconception of all? If the information is in print or on the internet, it must be true!
- FACT: Remember the old saying, “Don’t believe anything you read, and only half of what you see!” When I first started studying waivers and waiver law, the prevailing wisdom was “Waivers are not worth the paper they are written on!” That was not true then and is not true today. Well-written waivers signed voluntarily by an adult participant can provide protection in most states.
A Concluding Fact: A sport/recreation business should secure a well-written waiver, should use it, and keep it on file. BUT, no waiver guarantees protection! Along with the waiver, liability insurance should be a MUST for all businesses!!!!!!!