Guest Column - November 2006
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The ABCs of Liability Waivers

Risk Management

By Dr. Doyice J. Cotton


Recommendations for using waivers

In spite of their limitations, waivers are still the best single risk-management tool available to service providers, other than the prevention of the injury. Here are some suggestions to maximize waiver effectiveness and protection:

Use waivers in all states for two reasons: First, waiver law in any state is always subject to change. Even though waivers were not enforced in the past, a new court or a new set of circumstances can result in their enforcement. Second, well-written waivers will include a discussion of the inherent risks of the activity, so even if the waiver is not enforced, the court may use the waiver as evidence that the signer knew and assumed the inherent risks.

Use parental waivers with minor clients in all states. There is no downside—if the waiver is not enforced, you are no worse off. In the past 15 years, courts or legislatures in 10 states have either enforced such waivers for the first time or passed legislation to that effect.

Use the stand-alone format. This simply means the waiver should be a document of its own. It should not be contained in a contract such as a membership agreement, in an application or in an agreement signed by a group of people. Although waivers in other formats are generally enforceable, they are not as strong, and courts have expressed a preference for the stand-alone waiver agreement.

Use the new approach to waivers—the participant agreement. The participant agreement has two major advantages. First, it provides more protection by including such protective tools as an indemnification agreement, a covenant not to sue, a severability clause, a venue and jurisdiction clause, a mediation/arbitration provision, and an in-depth assumption of risk section. The second major advantage is that it is written with a less threatening, less one-sided approach, which serves to benefit both the provider and the signer. It strives to build rapport between the two and delivers the message that the provider cares about the safety and well-being of the signer. (More complete information on this new approach can be found in the 5th edition of "Waivers & Releases of Liability." See author information for more details.)

Finally, it is important to understand that all waivers are not created equal. Many service providers acquire their waivers from a book or from a friend who is also in the business. It is vital to understand that a waiver that worked in one state will not necessarily work in your state. In fact, a waiver that worked in your state will not necessarily work for your business. Your waiver should be written specifically for your business, considering the services you have to offer, the way you do business and the quirks of your business operation. One other caution: Not all attorneys have experience and know-how regarding waivers, and not all good waivers are written by attorneys. Be sure to select an attorney who is familiar with waiver law and familiar with your type of business. A more economical approach is to write your own waiver and then have a knowledgeable attorney examine and improve it. Money spent learning about waivers and in acquiring a good waiver for your operation is money well spent.



ABOUT THE AUTHOR

Dr. Doyice J. Cotten is professor emeritus of sport management at Georgia Southern University and owns Sport Risk Consulting. He is co-editor of the textbook, "Law for Recreation and Sport Managers" (Kendall-Hunt, 4th edition, 2007). He and his wife, Mary, co-authored "Waivers & Releases of Liability" (5th edition), which summarizes sport and recreation waiver law in all states and presents detailed guidelines for preparing or for evaluating liability waivers. He can be reached at djcotten@gmail.com.