By Doyice Cotten
Sport and recreation managers are often confused about their liability in the event of an injury. This is understandable because the law is far from simple. The intent of this post and the included table is to reduce at least some of the confusion.
First, injuries result from one of three causes. The cause of injury may be a simple accident or an “inherent risk” of the activity. In this case the provider usually has no liability providing the injured party was aware of the inherent risks of the activity.
The second cause of injury is provider negligence. In other words, the participant suffered an injury and it was your (the provider’s) fault. You did something wrong. In this case, you, the provider, may be held financially liable and have to pay a monetary award to the injured party.
The third cause of injury is an extreme act — an action beyond negligence. These vary from state to state, but may include gross negligence, reckless conduct, or willful/wanton acts (listed here in an increasing order of wrongfulness). The definitions vary to some extent by state; here, specifics are not important. All you need to know is that they are very bad and you have trouble with a capital T.
Each of these causes of injury is represented by a column in the following table. Beneath each, you may find an indication of your possible liability as well as the protection provided by three protective documents available to service providers — an assumption of inherent risk agreement, a waiver of liability for negligence, and an indemnification agreement. A comprehensive “waiver” should include all three of these in a single document.
Keep in mind that this is a simplified overview and does not address all relevant factors. For instance, waivers of liability for negligence are not enforceable in a few states. Another factor is the age of the participant — waivers of liability for minors currently seem to be enforceable in only about 12 to 15 states.
So, while this table can help you to understand the general picture and is a good starting point, it has many limitations. Sport and recreation managers should learn as much as possible about their potential liability. A good place to get more information is to become a regular reader of this website. For anyone wishing to dig even deeper, consider purchasing Waivers & Releases of Liability (9th ed.) by Doyice and Mary Cotten. It has more than 200 pages explaining waivers, state waiver laws, and how to write a waiver. (This table was taken from the book.)
Photo Credit: Thanks to Thomas Leth-Olsen via Flickr.