The ABCs of Liability Waivers
By Dr. Doyice J. Cotton
There are many misconceptions regarding liability waivers and releases. For many years, the major misconception was that "waivers are not worth the paper they are written on." Unfortunately, as this belief fades out, it is often replaced by the erroneous belief that waivers can offer total liability protection for all facility and service providers under all circumstances. So, let's take some time to clarify what waivers are and what they can and cannot do, and provide the basic information necessary to make the best use of this valuable risk-management tool.
A waiver is a contract between a service provider and a participant signed prior to participation by which the participant agrees to absolve the provider of any fault or liability for injuries resulting from the ordinary negligence of the provider, its employees or its agents. The agreement relieves the provider of liability for injuries resulting from mistakes, errors or faults of the provider and, in effect, relieves the provider of the duty to use ordinary care in providing for the participant.
The terms "waiver" and "release of liability" are usually used interchangeably. Other protective legal documents include the disclaimer, the indemnification agreement, the covenant not to sue and the informed consent agreement. These terms are often wrongly used synonymously with waiver, but they actually have different functions and effects. While they can be valuable to professionals, space constraints prevent a further examination of these concepts here.
One reason so many people are confused about whether waivers are effective is because waiver law is based on state law. Thus, the answer to the question "Do waivers work?" depends on which state you are in. Based on a study of state statutes and court decisions in more than 900 sport- or recreation-related waiver cases, each state can be classified as to its stance toward waivers. Some have very lenient requirements for enforcement, others moderate, and many have very strict requirements. Three states disallow such waivers entirely. (See Table 1.)
In at least 46 states, a well-written, properly administered waiver, voluntarily signed by an adult, can protect service providers from liability for injuries resulting from the ordinary negligence of the provider, its employees and its agents. Note, however, that not all waivers protect in the lenient states and not all waivers fail in the strict states.