Waiver Terminology (Part I)

By Doyice Cotten

 Most professionals recognize the terms “waiver of liability,” “release and “assumption of risk.” Most, however, are not sure about how these and other similar terms are defined and what their exact function is. In this 3-part series, I will present a brief description of each, along with its intended function. If you encounter some of these terms often, it is probably important that you understand them.

 Most of these documents are legal contracts and must be signed by adults. The agreement to participate and the assumption of risk agreement are the exceptions. These are basically informative in nature and may be signed by minor participants. Part I focuses on defining terms related to protection from liability for ordinary negligence

Waiver of Liability

A waiver of liability is a contract signed prior to participation releasing the provider from liability for injuries that may occur due to the ordinary negligence of the provider.  In form, it can range from a clause to a multi-page document. The intent of the waiver of liability is to relieve the provider of the duty of ordinary care so that the provider is not liable for ordinary negligence.  Its effect is to lower the standard of care for which one is liable to gross negligence. (Protects from liability for Ordinary Negligence)

Release

Release is the term used for two different types of documents:

1)      In many jurisdictions, release is synonymous with waiver of liability. The intent of the release is to relieve the provider of duty of ordinary care so that the provider is no longer liable for ordinary negligence.  (Protects from liability for Ordinary Negligence)

2)      In other jurisdictions, a release is a post-injury agreement discharging provider of liability for negligence of the provider (usually in conjunction with a settlement). The release discharges liability and bars further legal action in conjunction with the settlement.

Exculpatory Agreement

An exculpatory agreement is a term for a stand-alone document and is synonymous with waiver of liability. The intent of the exculpatory agreement is to relieve the provider of duty of ordinary care so that the provider is no longer liable for ordinary negligence. (Protects from liability for Ordinary Negligence)

Exculpatory Clause

An exculpatory clause is the specific language in a document that releases a provider from liability for ordinary negligence. The intent of the exculpatory clause is to relieve the provider of duty of ordinary care so that the provider is no longer liable for ordinary negligence. (Protects from liability for Ordinary Negligence)

Express Assumption of Risk

Express assumption of risk is not defined the same in all jurisdictions. In most jurisdictions, express assumption of risk is synonymous with waiver of liability and is a contract in which the signer specifically agrees orally or in writing that the signer agrees prior to participation that the signer assumes all the risks of the activity and that the provider does not owe a duty of ordinary care. The intent of the express assumption of risk is to relieve the provider of duty of ordinary care so that the provider is no longer liable for ordinary negligence. (Protects from liability for Ordinary Negligence)

Covenent not to Sue

A covenant not to sue is a contract signed prior to participation by which the signer agrees not to file suit against the provider for any cause of action. It is very similar to a waiver of liability in that the signer is contractually prohibited from filing suit against provider; it differs in that the covenant does not extinguish the cause of action against joint tortfeasors. (Protects from liability for Ordinary Negligence)

 Disclaimer

A disclaimer is a statement by which the provider asserts that the provider is not responsible for any injury. The term is sometimes used synonymously with waiver of liability, but is different in that it is a unilateral agreement and generally is not signed by participant. Disclaimers usually are contained in one of three formats:  1) a document (e.g., application form, rental agreement), 2) on the back of a ticket or 3) in signage. They usually consist of language such as “Management not responsible for injury” or “Swim at your own risk.” The intent of the disclaimer is to relieve the provider of the duty of ordinary care so that the provider is no longer liable for ordinary negligence. They are seldom effective because it is difficult to show that the participant was aware of and agreed to the contract. (Limited protection from liability for Ordinary Negligence)

See Part II of this series next week!