The following article is excerpted, in large part, from the 7th edition of Waivers & Releases of Liability by Doyice and Mary Cotten. It addresses some questions facing many providers that make extensive use of waivers.
Businesses generally do not have an unlimited amount of storage space and the questions arise: Which records do I need to keep? Moreover, how long must I keep them?
Which Agreements Should be Kept?
The answer to this question is simple. Keep them all! Then you do not need to worry about whether a client was injured or when the statute of limitations expires. Many may ask, “Where will I keep all those waivers?” A good solution to your storage problems follows.
Storing and Locating Agreements
When an injury occurs or when you receive notice of a legal action against you, the most important question to ask is not “Did he sign a waiver?” It is not “Did I save the waiver?” The most important question is “Can you locate the waiver?”
Locating and Identifying
The best waiver in the world may not provide protection if the provider cannot produce it when needed. Most providers use more than one type of agreement (e.g., participation agreement, rental agreement, informed consent) or use different agreements for different activities (e.g., snowmobiling, skiing, snow-shoeing). Color-coding, by using a different color paper for each different type of agreement or activity involved, can be very helpful in filing and locating the agreement needed. Much time can be saved if you know that all rafting waivers are green and all overnight hike waivers are yellow.
Storage
As with any important business records, safe storage of waivers is very important. Stored waivers should be well organized (e.g., by year, activity, name) for easy access and should be stored in a safe location. Being able to produce a waiver signed by the plaintiff can help to protect the business from liability.
For a business that deals with a large number of clients, the space needed for storage of waivers can become immense very quickly. A convenient solution to the problem is to scan each waiver and store them on CD or DVD. This conversion might be done periodically (e.g., monthly, end of season). It would also be good practice to make a copy of each disk and store them in different buildings just in case a facility burns or is otherwise destroyed.
How Long Should Waivers be Retained?
One might think that if no injury has occurred at the conclusion of the individual’s participation, the business would be safe in discarding the waiver at that point. This is not the case because many times injuries are not reported at the time of occurrence. The participant may not realize an injury has occurred, may not realize the seriousness of an injury until a later date, or has not yet decided to file suit against the provider. So do not discard a stack of waivers simply because you think no injury has occurred.
In previous editions, the authors have recommended that agreements should be retained until the statute of limitations (the legal restriction on the length of time an injured party has in which to file suit) has expired. Upon the recommendation of Gary Eaton, an attorney and balloonist, I would now recommend that one keep waivers forever. There are several reasons for this:
1) Claims in California (and possibly other states) must be filed during the statute of limitations period, but you may not be notified of the suit until much later;
2) Confusion may exist because of the varying length of the statutes of limitations and the complexity presented by minors; and
3) If one has taken the trouble to use waivers, the comparative effort to retain them is minimal. The increased peace of mind should be worth the extra effort.
The thing one must avoid is to need a waiver and no longer have it. Being able to access a needed waiver would outweigh any inconvenience.
*******
So, in summary, treat your waivers as the important legal documents they are – not a stack of papers accumulating in the corner of a storage closet.