Guest Column - August 2009
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Understanding Liability Waivers

By Eric Eilerman & Dr. Peter Titlebaum

To understand liability waivers, it is first important to have an understanding of some of the legal terms.

One important term is "negligence." There are two basic types of negligence—gross negligence and ordinary negligence.

Gross negligence primarily occurs when there is a failure to correct a problem after it has been reported. For instance, an injury that results from a failure to repair a piece of broken fitness equipment after the malfunction had been reported would qualify as gross negligence. The facility or organization will be held liable in the event of gross negligence, regardless of whether a liability waiver has been signed or not.

According to Doyice Cotten, a sports risk consultant, ordinary negligence is "the failure to act as a reasonably prudent professional would act under the circumstances." These circumstances can include broken equipment, safety hazards or accidental bad advice from a professional. For a facility or event, a liability waiver is designed to provide financial protection from this type of negligence. For example, a liability waiver could prevent a facility from being sued if a person breaks their leg because a treadmill suddenly stopped working.

While waiver law is pretty straightforward when applied to adults, there is quite a bit of leeway in the law when it is applied to minors. Liability waivers are typically viewed as a contract. Minors, however, are unable to legally sign a contract and are therefore not bound by the waiver. This leaves a facility liable for all negligent acts regarding minors and leaves them open to a lawsuit either by the parents of the child or from the child himself after he reaches the age of 18.

Many facilities now protect themselves by having a parent or guardian co-sign the waiver along with the minor. The facility believes that the parent is signing away the rights of the minor and "promising" the facility that neither the parent nor the minor will file any legal action against the facility. This concept, however, is not usually enforced by the courts.

An interesting case occurred in 1996 in Michigan when a 10-year-old girl was injured when another child jumped into a swimming pool on top of her. The mother agreed not to sue in exchange for a $3,275 settlement with the YMCA where the injury occurred.

However, when the girl turned 18, she filed a lawsuit against the YMCA. The court ruled that the parent "had no authority, merely by virtue of being a parent, to waive, release or compromise claims by or against the parent's child." In other words, the mother did not have the legal authority to sign away the child's rights, and the YMCA was still liable for the negligent act.