By Doyice Cotten
Contrary to some opinions, All Waivers Are Not Born Equal. Waivers range in length from one sentence to several pages. Some are written specifically for one particular business while others are generic and intended to be used in many situations. Some are written in legalese; others written in plain language. And some provide more types of protection than others.
While waivers may vary in length, specificity, and verbiage, one of the most important determinants of whether the waiver will protect the activity provider is one or two sentences comprising what is called the exculpatory language. The exculpatory language is that language that specifically provides what is being waived or released. While there are many other components that should be in your waiver, none will protect you from liability for negligence if the exculpatory language is not well-drafted.
In this post, I am taking some examples of exculpatory language from several waivers that have been addressed in court. Some failed, some did not. That is not really important because even with effective exculpatory language, a waiver can fail for a number of other reasons. The examples come from various states and involve different sports or recreational activities.
Look through these examples and ask yourself if each seems to protect a business from liability for injuries to participants that are caused by the negligence of the company and/or employees. Identify the main differences among the examples?
Examples of Exculpatory Language
I … release and agree to hold harmless and indemnify (provider & other releasees) … from any and all claims, actions, or damages without any limitation whatsoever, … that results in any way from my participation in the activity.
I will not hold (provider & other releasees) … responsible if I am injured as a result of any problem[s] (medical, accidental, or otherwise) which occur … participating in the trip.”
I … assume any and all risks of injury or death arising from or relating to the Activities, … and waive and release any and all actions, claims, suits or demands of any kind or nature whatsoever against (provider & other releasees)
I hereby release [and] discharge … (provider & other releasees)… from all liability, claims, demands, losses, or damages … caused … in whole or in part by the negligence of the (provider & other releasees) …
… Participant hereby agrees to waive, release, and hold harmless (provider & other releasees) from any and all claims for damages for death, personal injury, or property damage … as a result of participation in any activity and event including …
… hereby releases, waives, discharges, and covenants not to sue the (provider & other releasees) from all liability to the undersigned … for any and all loss or damage, and any claim … arising out of or related to the event(s) whether caused by the negligence of the releasees or otherwise.
School Field Trip
I hereby give permission for my child … to attend the … field trip …. I realize that (provider & other releasees) is not responsible or liable for any accidents or injuries that may occur.
I understand that the … sport … is an inherently dangerous activity …. I … accept and assume responsibility and risk for injury, death, illness, or disease, or damage to property arising from my traveling to, participation in, or returning from this activity.
Considerations: Which is better, …
- 1) to waive negligence or 2) to waive any and all claims?
- 1) to waive negligence or 2) to waive negligence of the provider?
- 1) to waive inherent risks or 2) to waive negligence?
- 1) to waive claims of any kind or nature whatsoever or 2) to waive claims arising from or relating to the activity?
Consider these 8 examples of exculpatory language and select the two waivers that would be more likely to protect your business. Now select two that you would consider least likely to protect.
How Did You Do?
Regarding the first consideration – “negligence” or “any and all claims” – in most states, either will work. Courts in many states interpret “any and all claims” to include negligence claims. However, in about a dozen or so states, that is not the case; in these states, a waiver that does not use “negligence” or words of similar import will fail. In addition, courts in virtually all states require that waivers be clear and unambiguous as to what is being released. On this point “negligence” is the clear winner, leaving almost no ambiguity as to what is being released.
As to “negligence” or “negligence of the provider,” when “negligence” is released, there is sometimes a question of whose negligence is being released, that of the provider or that of the participant. The author recollects one case in which the waiver actually specified release of “negligence of the participant.” So here too, it is best to be specific and “negligence of the provider” is the clear winner.
Concerning the waiving of “inherent risks” or “negligence,” one should remember that the major purpose of the waiver is to protect the provider from liability from injury resulting from the negligence of the provider. Actually, the provider is generally not liable for injuries resulting from the inherent risks of the activity. There are, however, exceptions to this rule; consequently, there are two major reasons why the waiver should also include protection from liability for the inherent risks of the activity. First, participants are not expected to assume risks of which they are unaware. Second, several states have begun to require that waivers include a warning of the inherent risks – some call for examples of inherent risks to be listed. Of “inherent risks” or “negligence,” the hands down winner is “negligence,” but the wise drafter addresses both.
In regard to the choice of language between “claims of any kind or nature whatsoever” or “claims arising from or relating to the activity,” one should consider some of the types of affected incidents. For instance, slip & falls in the shower, tripping over a piece of equipment while going to the aerobics room, slipping on a stair with worn no-skid pads, tripping on the sidewalk, or stepping in a hole in the parking lot can have a significant financial impact on a business; as a result, most want protection from such risks. Language such as “claims of any kind or nature whatsoever” may protect against such incidents; “claims related to the activity” probably will not. At first consideration, one would say to use the broader language, but there are a couple of problems with that. First, courts in some states such as Wisconsin will not enforce waivers that are overly broad; such language can sometimes contribute to the failure of the waiver. Second, it is well-established that common law imposes a duty of care on business owners to maintain safe premises to invitees. Courts in a few states, New Jersey and Illinois among them, have found waivers conflicting with this duty to the invitee to be against public policy. But courts in most states seem to enforce these broad waivers. So which is the winner? The broad waiver certainly provides the broader protection desired – if it is enforced. So there is no clear winner here (unless you are in Wisconsin, New Jersey, Illinois, or another state that, in effect, prohibits the broadly worded waivers that try to address everything).
Now evaluate your rankings of the 8 examples of exculpatory language. Do you still have the same two waivers ranked as best and the same two ranked as worst?
If you have taken the time to read this entire post and made the suggested comparisons, you should have a better understanding of the complexities involved in waivers and waiver law. Look at your waiver now and decide if you think it is saying what you intended.
But a caution, this post only addresses one factor in waiver effectiveness. There are many more that can result in your waiver failing to protect. Some of them include which state you are in (waivers are more likely to be enforced if you live in Georgia, California, or Ohio; less likely to be enforced in Wisconsin, Connecticut, and Louisiana); the age of your clients; the way the waiver is administered; and how clear and understandable your waiver is. By the way, the author selected the Jetboat and Auto Racetrack waivers as best. The school field trip and the football waivers provided no protection against negligence. The remaining waivers would probably be enforced in a number of states.