Guest Column - November 2006
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The ABCs of Liability Waivers

Risk Management

By Dr. Doyice J. Cotton


What are the limitations of waivers?

Waivers do have limitations that can adversely affect their effectiveness.
Some of the more important limitations include:

Language Requirements: The most common reason waivers fail is because they are poorly written. Courts in all states require that the waiver language be clear and unambiguous. In addition, many states require specific language for the waiver to be enforceable. For instance, New York courts (and the courts in a number of other states) require that the waiver include language specifying the "negligence" of the provider. Failure to use the word "negligence" in those states causes an otherwise-enforceable waiver to fail.

Gross Negligence: In most states, courts will not enforce waivers intended to protect the provider against liability for gross negligence, reckless conduct, willful/wanton conduct or intentional acts. Where ordinary negligence is defined as the failure to take the care that a reasonable, prudent professional would take under the circumstances, gross negligence is an extreme form of negligence in which the party fails to take the care that even a careless person would take under the circumstances.

Non-Signing Spouses: In some states a waiver signed by one spouse protects the provider from litigation by the non-signing spouse in the event of injury or death of the signing spouse. In other states, a waiver has no effect on the right of the non-signing spouse to bring suit. In this case, the provider will find itself lacking the expected protection of the waiver.

Minor Clients: A significant limitation that is very important to many service providers is the restriction on enforcing waivers signed by minor clients or signed by the parents of minor clients (parental waivers). Until recent years, the general rule was that neither waivers signed by minors nor parental waivers were enforceable. In the past few years, courts in a number of states have begun to enforce parental waivers. Additionally, two states (Alaska and Colorado) have passed statutes enabling the enforcement of such agreements. Table 2 shows the current status of parental waivers in each state.


LIKELIHOOD TO ENFORCE PARENTAL WAIVERS
Insufficient Information to Predict

Very Unlikely (Courts Have Refused to Enforce)

Possible (Rulings Indicate Enforcement Possibility)

Excellent (Have Statute or Have Enforced One or More Cases)

Ala.
Iowa
Md.
N.C.
N.M.
Okla.
S.C..
Wyo.

Del.
Ind.
Minn.
Neb.
Nev.
Ore.
S.D.
Kan.
Ky.
Mo.
N.H.
N.Y.
R.I.
Vt.
Alaska
Ark.
La.
Mont.
Tenn.
Va.
Hawaii
Maine
N.J.
Texas
Wash.
Ill.
Mich.
Pa.
Utah
W.V.
Ariz.
Idaho
Miss.
Alaska
Colo.
Fla.
Mass.
Ohio
Calif.
Conn.
Ga.
Ind.
Wis.