Feature Article - August 2010
Find a printable version here

Risky Business

The Ins and Outs of Risk Management

By Dawn Klingensmith

Waivers in the Virtual World

In this day and age, parties often enter into waiver agreements electronically--via an online registration process, for example. But will courts validate such waivers, or must they be printed and signed in ink to be enforceable?

"There's no definitive answer," said Alexander "Sandie" Pendleton, attorney, Kohner, Mann & Kailas, Milwaukee.

But online waiver agreements have raised issues such as what constitutes consent sufficient to form a binding contract; whether it's necessary for the signer to actually have read the terms; what constitutes a sufficient signature and how can you prove a particular person clicked "I agree"; how to prove that agreed-upon terms weren't changed after the fact if there's no paper trail; and how to prove an agreement existed in the event of data loss.

In cases stemming from the recreation sector, courts have enforced online waiver agreements even in instances where the original online agreement was later lost. For example, in a 2009 Minnesota case, "the court allowed enforcement of an online waiver agreement, even though the defendant lost the 2005 version of the original agreement and could only produce the 2007 version with testimony by an individual that the terms of the 2005 form and the 2007 form were the same," Pendleton said.

If you are using or considering using an online registration process with a waiver agreement, consult a lawyer who has experience with online forms and procedures, he advised.

In fact, whether on paper or in pixels, "Waivers are legal documents that should be prepared by or reviewed by an attorney who is familiar with the law in the applicable jurisdiction," Nohr said.

Legal Defenses

Safety rules and regulation also should be put in writing, clearly communicated and consistently enforced, because you may be able to successfully defend a lawsuit if you can prove the plaintiff knowingly violated rules.

According to Nohr, the primary way to defeat a negligence action is to show that one or more of four legal criteria for negligence have not been met. The four defenses are demonstrating the defendant did not owe a "duty of care" (see sidebar) to the plaintiff; establishing that the duty of care that was owed was not breached; when breached, showing the defendant's act or omission was not the proximate cause of the plaintiff's injury; and showing that the plaintiff suffered no real harm or injury.

"Negligence cases are frequently won or lost on the availability of documentation," Cotten said, so incident, or accident, reports are crucial.

Incident reports record information about a particular injury or incident when the incident is fresh in everyone's minds and when witnesses and facts are readily available. These reports are helpful in communicating the facts to any insurance carriers that are considering the application of coverage. They also serve to provide important facts if a lawsuit should be filed at a later date, Nohr said.

Incident reports should stick to the facts and not assign blame or causation, Cotten stressed.