Waiver Terms and Definitions

Signing Waivers (CC by ceonyc on flickr.com)Getting Started with Waivers???

Even experienced professionals in recreation, fitness, and sport often misunderstand or confuse some of the terms used. Below are some terms and their definitions that will help you better understand some of the documents that help to protect from liability.

Waiver – Contract signed prior to participation releasing provider of liability for injuries resulting from the ordinary negligence of the provider. Can range from brief exculpatory language to a stand-alone document comprised of many elements.

ReleaseUsed synonymously with waiver in many jurisdictions.

In other jurisdictions, it is a post-injury agreement discharging provider of liability for injuries resulting from the negligence of the provider (usually in connection with a settlement)

Exculpatory Clause – Technically, exculpatory means tending to clear one of fault.

An exculpatory clause is the part of a document that releases a provider from liability for injuries resulting from the fault or ordinary negligence of the provider

The exculpatory agreement is a term for a stand-alone document that is synonymous with waiver.

Express Assumption of Risk – Used synonymously with waiver in many jurisdictions. Contract in which the signer specifically states that the signer agrees prior to participation that the provider owes no duty.

Disclaimer – A statement in which the provider asserts that the provider is not responsible for any injury. Sometimes used synonymously with waiver, but Is generally a unilateral declaration that is not signed by participant and, in most cases, offers little or no protection.

Indemnity Agreement – 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.

Covenant not to Sue – A contract signed prior to participation by which the signer agrees not to file suit against the provider for any cause of action.

Agreement to Participate – Informative agreement that 1) formalizes common law primary assumption of risk; 2) obtains participant acknowledgement of voluntary participation. 3)obtains assertion that signer knew, understood, & appreciated the risks of injury; and 4) informs signer of behavioral expectations.

Assumption of Risk Agreement – Similar to the agreement to participate, but is often presented in a briefer format. Participant assumes the inherent risks of participation.

Parental Permission Form – A signed statement by parent or guardian that minor can participate in the stated activity. Can be included as part of the agreement to participate. It can include a waiver or exculpatory clause. It offers no protection for the provider.

Informed Consent Agreement – Agreement that fully discloses 1) what the program or treatment will do to the subject, 2) the potential risks and benefits of the treatment, and 3) what the expected results will be. The subject releases the provider from liability for injuries resulting from the treatment risks of the treatment or program.

Participant Agreement – This is essentially a waiver, an assumption of risk agreement (or agreement to participate), and an indemnification agreement merged into one document. It stresses the sharing of information and is written in such a way as to help the provider gain a better rapport with the participant.