Which Waiver Format is Best?

The table featured below is an excerpt from Waivers & Releases of Liability by Doyice & Mary Cotten.  Providers should examine this table closely before deciding which format they want to use for a waiver.


Comparison of Waiver Formats

Stand-Alone Waiver

Or

Participant Agreement

Waiver Within

Another Document

Group Waiver

Disclaimer

Description

One or  more pages containing only the  waiver & related information. Exculpatory language (often just a paragraph) included within a contract or application Exculpatory language

(often just a paragraph)at the top of the sheet with spaces below for all  members of  the group to sign

Language usually appearing on the back of a ticket disclaiming liability for injury to the participant or spectator

Advantages

1) Longer, easier to achieve clarity of intent.

2) Conspicuousness of the waiver is increased.

3) Can include more information (e.g., inherent risks, severability).

4) Some courts advise that providers use this waiver format.

1) One document to retain per client.

2) Less paperwork to retain.

1) One document to retain per group.

2) Less paperwork to retain.

1) Dispersal achieved with ticket distribution.

2) Little or no cost.

3) No paperwork to retain.

Disadvantages

1) More paper to file and retain.

2) Providers may fear it will scare away participants.

1) Language is often inconspicuous.

2) Susceptible to a claim that client was unaware of the waiver.

3) Generally, it must be kept brief and some critical language may be omitted

4) If contract is ruled invalid, this makes the waiver invalid.[1]

1) Person administering the waiver may not explain its function.

2) Language is often inconspicuous.

3) Susceptible to a claim that client was unaware of waiver.

4) Generally, must be kept brief and some critical language may be omitted.

1) Activity ticket disclaimers usually not enforced due to difficulty in showing a meeting of the minds existed.

2) Least likely format to be enforced.

Validity

Stand-alone waivers are enforceable in at least 45 states.

They are the most        commonly used.  For information on their validity, see Chapter 8.

Some courts encourage this format.[2]

This format provides less protection and is somewhat less likely to be enforced than the stand-alone waiver.[3] T   This format has been found enforceable in several cases, but is often invalid due to ambiguity or administrative problems.[4] Activity ticket disclaimers generally not enforceable because meeting of minds must be shown.Cruise line disclaimers of Line’s negligence         invalid by statute.

Tour operator disclaimers protect for independent contractor negligence.


[1] Dunlap v. Fortress Corporation, 2000.

[2] Holzer v. Dakota Speedway, Inc., 2000; Yauger v. Skiing Enterprises, Inc., 1996; Johnson v. Rapid City Softball Association, 1994.

[3] Stokes v. Bally’s Pacwest, Inc., 2002; Reed v. U. of North Dakota, 1999; Ko v. Bally Total Fitness Corp., 2003.

[4] Del Raso v. United States of America, 2001; Pulliam v. Pocono International Raceway, Inc., 1996; Johnson v. Rapid City Softball Ass., 1994; Reuther v. Southern Cross Club, Inc., 1992.