Waivers of liability are commonplace in sport, fitness and outdoor programs. Most active people have at one time or another signed a waiver. Most organizers of sport programs have, at certain times, asked their participants to sign waivers. At a typical university or college waivers may be used in athletic facilities, campus recreation programs, outdoor pursuits, special events, student clubs and trips and tours. Insurance brokers frequently recommend that waivers be used, and in some cases may require a waiver as a condition of obtaining insurance.
Despite being so widespread however, waivers are terribly misunderstood. Some people think that having participants sign a waiver protects their organization from lawsuits. On the other hand, some people who sign waivers believe they are simply meaningless pieces of paper. The truth is a bit of both -- in some cases, the courts have upheld waivers. In other cases, and for varying reasons, they have not. Unfortunately, the test of whether a waiver is any good only occurs in court. However, there are some practical things that you can do to increase the chances that your waiver will work when you need it, as described in this article.
What is a Waiver?
Basically, a waiver is a legal contract between two parties: the participant in a program and the organization offering the program. In this contract, the participant agrees not to hold the organization, or any person associated with the organization who is named in the waiver, responsible or "liable" for any injuries which the participant receives.
A waiver is a very onerous contract because by it, the participant agrees not only to expose him or herself to the physical risks of the activity, but also to the legal risks. The distinction between these two types of risks is critical to understanding a waiver.
There is physical risk associated with all physical activity -- this risk is inherent, unavoidable, reasonable and, in many sport and recreation settings, desirable. Physical risks are the risks, dangers and hazards which are inherent in the activity. An example is downhill skiing -- every skier knows that he or she might get injured by falling at high speed, by colliding with someone or something, or by improperly getting on or off the ski lift.
The second type of risk is legal risk. This is the risk that the organizers of an activity will behave negligently towards a participant -- that is, that in managing the program they will not meet the reasonable standard of care required by law. Using the same example from downhill skiing, there is a risk that a skier will get injured by skiing into a hazard which should have been marked or by falling from a defective ski lift. This legal risk is not inherent in the activity, nor is it desirable, reasonable or acceptable.
Our law says that participants can voluntarily assume the physical and legal risks associated with a recreational activity. The mere act of participating in an activity can often be taken as assuming the activity's inherent, physical risks. However, the legal risk (that is, the risk of negligence) can only be assumed by a written agreement or contract such as a waiver.
An Ethical Dilemma?
When participants sign a waiver, they are expressly consenting to be exposed to the legal risk of the organization's negligence, as well as to the inherent physical risks of the activity itself. A valid waiver will relieve an organization of responsibility for injuries, whether resulting from inherent physical risks or resulting from the organization's negligence. This makes waivers very attractive from the point of view of avoiding liability. However, it also raises an ethical issue -- asking people to sign your waiver has the effect of asking them to condone your negligence. In certain circumstances, this may not be appropriate.
Ethical issues aside, waivers also raise some tricky legal issues. Because waivers are so poorly understood, they are frequently used in situations which render them unenforceable. For example, minors (persons under 18 in most provinces) cannot sign most legal contracts, nor can their parents or guardians sign a contract on their behalf, particularly an onerous contract such as a waiver. This means that waivers cannot be used in programs for youth. Secondly, mentally incompetent adults cannot sign waivers -- this means that waivers cannot be signed in situations where the participant's judgment may be clouded by alcohol. Thirdly, public policy might render a waiver unenforceable -- for example, waivers are not recommended in situations involving mandatory participation such as in a course which is required for credit. Some jurisdictions in the United States have gone so far as to prohibit waivers in recreational settings, on the basis that they do not serve the public interest.
Tips for the Risk Manager
These are some practical recommendations for the risk manager who wishes to improve the use of waivers in their University programs.
1. Inform yourself about waivers and their legal and ethical implications. Ask yourself, is this a situation for which participants should be signing a waiver? Might there be some alternative risk management techniques which would be more appropriate (for example, having participants sign an "informed consent" agreement or an "acknowledgement of risk agreement" which asks them to consent to physical but not legal risks)? Or maybe the risks associated with the program are minimal, due to the nature of the activity, the extent of supervision or the qualifications of your staff. In this case, the decision might be that a waiver is not appropriate.
2. If you decide to use a waiver, its wording will depend on the nature and circumstances of your program or activity. Many organizations borrow waivers from other organizations or use the same waiver for everything - don't do this!! It is very important that the waiver specifically state the risks, dangers and hazards which you are asking the participant to accept, including the risk of your negligence. For example, the physical risks associated with a martial arts course might include:
If your activity is a potentially dangerous one (skiing, rafting, bobsledding or ice hockey for example) there is a risk of severe or fatal injury, which should be stated in your waiver form. Avoid waiver wordings which state "I accept the risks inherent in my participation ..." or words to that effect, without describing what these inherent risks are.
3. Be sure to include within the waiver all of the parties which you want to have covered. This would include directors, officers and employees obviously, but you might want to also include volunteers, contractors, instructors, students, coaches, members or any others who are involved in running the particular program. If necessary, err on the side of caution by including too many people as opposed to too few.
4. Develop procedures and guidelines that will help ensure consistent administration of waivers. For example, be sure that waivers are executed at convenient times well in advance of programs, that witnesses follow a consistent procedure, and that all signed waivers are kept in a safe place. This may mean developing an information package on waivers for those departments on your campus that will be using them. This package can give general information about the legal meaning of waivers, and offer step-by-step instructions on how to execute a waiver properly.
5. Remember that a waiver is a very serious contract. If your program officials treat waivers casually, then participants will also. Staff must impress upon participants that the waiver is important. In this regard, it may be useful to state at the top of the form in bold letters something like "Warning! By signing this form you give up important legal rights! Please read carefully!". Participants should never be rushed when signing the waiver, nor should they ever be led to believe that the waiver is just a form which must be signed because it's University policy.
There are advantages and disadvantages of using waivers in your University programs. Clearly the greatest advantage is that the waiver may hold up and transfer liability in the event of a finding of negligence against the University. A waiver can also serve as a deterrent to legal action, as the individual signing it might believe that they cannot sue. A waiver is also an excellent educational device which forewarns participants of the risks they are accepting and the possible consequences.
One of the major disadvantages of waivers has already been described -- this is the ethical dilemma which they create for the organization using them. This ethical aspect can harm an organization's public image. For ethical reasons alone, the University of Alberta no longer asks volunteers to sign waivers under any circumstances. And when a situation arises for which a waiver might be appropriate, the ethical question is the one first asked.
A final disadvantage is that waivers are time-consuming and inconvenient. Good waivers require careful planning and implementation, and do nothing to reduce or prevent injuries. Many organizations place too much emphasis on waivers at the expense of other risk management measures, which may be easier to implement, less costly and more effective in controlling risks and protecting the University from liability.
Originally published: CURIE (Canadian Universities Reciprocal Insurance Exchange) Risk Management Newsletter (July/August 1994) Vol. 5(4)