Guest Column - August 2009
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Understanding Liability Waivers

By Eric Eilerman & Dr. Peter Titlebaum

Key Legal Terms

Liability: when a facility is held responsible for its actions.

Gross negligence: when there is a complete disregard for the safety of customers.

Ordinary negligence: can occur when an injury results from unreported broken equipment, safety hazards or accidental bad advice.

Liability waiver: designed to protect a facility from a lawsuit in the event of ordinary negligence.

Agreement to participate: another form used by facilities, it does not provide a facility with liability protection, but does often outline the typical rules and expected behaviors, as well as outlining potential risks.

Another example took place in 2002 when the Colorado Supreme Court ruled that a ski resort was liable for negligence in the case of a 17-year-old boy. The boy crashed into a tree while skiing in 1995 and was blinded. Although the boy's mother had signed a liability waiver, the court stated that there are "significant protections" in Colorado that prevent a parent or guardian from signing away the rights of a minor and their ability to sue for negligence.

However, it should be noted that at least six states (California, Florida, Massachusetts, North Dakota, Ohio and Wisconsin) have upheld a waiver that was signed by at least one parent or guardian. Therefore, while liability laws vary from state to state, many clients are encouraged to pursue lawsuits against the negligent facility or event since the vast majority of states will hold them liable, with or without the signature of a parent or guardian.

Facility directors should be aware of this, and should also encourage parents to read and understand liability waivers before signing them. If they simply sign their name on the form without reading, they are limiting the chance of collecting a settlement in court if something does go wrong.

Train your staff members on liability waivers, too. After the parent reads the waiver, if there is something that they don't understand, they should be able to ask someone affiliated with the organization about it. This person should be able to explain what each section of the waiver means and how it applies to their particular facility.

If they are unable to explain the waiver, it may be because the waiver is too vague and therefore might not be a valid contract. There have been multiple court cases where a facility or event was held liable because the liability waiver was too confusing or not easily distinguishable from other legal information.