By Doyice Cotten

Sportwaiver has, on a number of occasions, emphasized the importance, or even the necessity, of specifying within the waiver that the signer is releasing the provider from liability for injuries resulting from the negligence of the provider. In this post, we are re-emphasizing this need. The reader can check below to see what the courts in the reader’s state seem to require currently.

Statutes and the case law in the following states (or jurisdictions) have not yielded enough information for us to determine if courts require the use of the term “negligence” to be used. Also listed here are Louisiana and Virginia — states that do not enforce waivers.

LA   VA   MS   NE   NC   RI   SD

The following list includes states that do not require magic words such as “negligence” for enforcement. Courts in these states enforce general language such as “… release the provider from liability for “any and all” claims ….”  Terms like “all liability” are considered to include liability for negligent actions.

Admiralty Law    AL   AR   CO   GA   ID   IL   IA   KS   MD   MI   MN   NM  

OH   OK   TN   UT   VI   WA   WV   WY

The following list includes states in which courts require more clarity in regards to the language used to describe actions for which the provider is released of liability. It includes states that encourage and recommend the use of the term “negligence,” but will enforce waivers that make it clear that the release of negligence is intended, yet fail to use the term or its equivalent. These states generally will not enforce a waiver that simply says the signer relieves the provider of “liability for injury.”In fact, courts in a few of these states have required the term, but other courts have stated that it is not necessary.

AZ   DE   DC   FL   IN   KY   MA   NH   NJ   ND   OR   PA   PR   SC   TX   VT   WI

The final list, below,  includes states in which all or some of the courts “require” the term negligence. These states tend to have the strongest requirements for enforcement of waivers. NOTE: Sometimes courts are not consistent within a state. In a few states, courts in some districts require the term while other districts do not. So, keep in mind that the lines distinguishing the states are sometime not as clear as the list would make it seem.

 AK   CA   CT   HI   ME   MO   MT   NV   NY

Risk Management Take-Away

*    These classification are as of December, 2015. They are subject to change; in fact, they are likely to change with time.

*     Regardless of which category contains your state, BEST PRACTICE would dictate that you use the term “negligence” in all waivers, regardless of the state. In fact, the term “ordinary negligence” would be preferable so as to distinguish between negligence and gross negligence. This will reduce the likelihood of the waiver being deemed ambiguous and unenforceable substantially.