Waiver Terminology (Part II)

By Doyice Cotten

 This is Part II of this series. You will notice that while Part I consisted of seven terms that were closely related in that all were designed to protect against liability for ordinary negligence and that were for the most part synonymous, Part II consists of very different terms. I would recommend that you review Part I when you finish Part II.

Indemnity Agreement

An indemnity agreement is a contract signed prior to participation by which participant or another party agrees to reimburse the provider for any monetary loss, including attorneys fees, incurred as a result of  1) injury to the participant or 2) injury or loss caused by the participant. The agreement has no effect on liability; the provider can still be sued, but the indemnifying party must repay provider for any loss. Such agreements are against public policy in many jurisdictions 1) when it involves a provider and a participant, or 2) when a parent indemnifies provider for loss due to an injury to a minor participant. (Provides repayment for monetary loss)

Informed Consent Agreement

An informed consent agreement is often thought to be the same as a waiver of liability; this is totally incorrect. Such agreements are generally used prior to some sort of treatment or training program and are used most often in medicine and research. The purpose of the agreement is to fully disclose 1) what the program or treatment will do to the subject, 2) the potential risks and benefits of the program or treatment, and 3) what results are expected.  The subject releases the provider from liability for injuries resulting from the program or treatment risks; the provider is not released from liability for risks caused by negligence of the provider. (Protects from liability for Treatment or Program Risks)

Agreement to Participate

The agreement to participate is an informative agreement that formalizes common law primary assumption of risk; obtains participant acknowledgement of voluntary participation and of knowledge, understanding, & appreciation of  the risks of injury; and informs of behavioral expectations. The agreement strengthens the primary assumption of risk and the contributory fault defenses.  (Protects from liability for Inherent Risks)

Assumption of Risk Agreement

An assumption of risk agreement is essentially the same as an agreement to participate; it may differ in that it  is often presented in a briefer format.  By this agreement, the participant assumes the inherent risks of participation. (Protects from liability for Inherent Risks)

Parental Permission Form

A parental permission form most often consists of a statement or note signed by a parent or guardian stating that the minor can participate in the stated activity. It can be included as part of the agreement to participate. While the note is good public relations, it has no legal effect on liability. The parent is simply giving permission for the student to be involved; no rights of the student are released. The provider remains liable for injuries caused by provider negligence. (No Protection from Liability)

Conclusion

In conclusion, it is important that sport and recreation professionals understand these terms and their function.  In the upcoming Part III of this series, I will illustrate the value of waivers of liability.

See the post next week for Part III.