Newsletter Articles

A Risk Manager’s Thoughts on Waivers

April 09, 2011

Joe Risser CPCU, ARM-P
Director, Risk Management
Cal Poly San Luis Obispo

Waivers or Release of Liability Agreements may result in a college or university developing an unwarranted sense of protection from liability. These intended legal contracts designed to (a) transfer responsibility for participation in an activity and (b) transfer responsibility for financing of a loss due to the activity may rest on enforcement by one or more courts. Details in wording, presentation, administration and even record keeping can be critical.

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Why not use Informed Consent Forms instead of Waivers?

April 09, 2011

Ian McGregor, Ph.D.
President, McGregor & Associates

There are some good arguments for using ‘Informed Consent’ forms instead of Waivers — but this is ultimately an institutional decision. Either way, it is important to understand what Informed Consent is — and isn’t.

If you study a well written waiver, it is split essentially into two distinct sections: an ‘Assumption of Risk’ section and a ‘Release’ section. The main purpose of the ‘Assumption of Risk’ section is to inform the participant of the inherent risks in a particular activity. The best waivers will include an Assumption of Risk statement that is very specific to the activity (e.g. rock climbing), and will detail the inherent risks specific to that activity. (But this means that you need a waiver for every activity — a potential logistical nightmare.)

If you decide to stop there — i.e. omit the ‘Release’ section in the document, you have in fact created an Informed Consent form.

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Waivers: Quick Facts

April 09, 2011

Ian McGregor, Ph.D.
President, McGregor & Associates

The following is a very brief overview of some key facts about Waivers. For a comprehensive treatment of waivers, consult the manual written by Cotten and Cotten (‘Waivers & Releases of Liability’, published by Sport Risk Consulting. See Cotten article).

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Electronic Waivers

April 09, 2011

John Wolohan
Department of Sport Management & Media
Ithaca College

As already detailed in this Newsletter, it is well established that in most states a well-written waiver, signed by an adult, can be an effective tool in protecting sport and recreation providers from negligence liability. What is not so clearly established, however, is the legal impact of online or electronic waivers. For example, if a sport and recreation program requires its participants to go online and sign a waiver before being allowed to participate in the event, will it carry the same legal weight as off-line or traditional paper waivers?

The purpose of this article is to take some of the guess work out of online or electronic waivers and to provide sport and recreation administrators with a checklist for writing and using online or electronic waivers. Before considering online or electronic waivers, however, it is important for the reader to understand how the courts have traditionally viewed waivers in the off-line world. Basically, a waiver is a contract in which the sport and recreation participant agrees to relinquish his or her right to sue the service provider in any event the participant is injured due to the provider’s negligence.

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Electronic Waivers — Technical Considerations

April 09, 2011

Ryan Matteson
Security Consulting
Office of Chief Information Officer
Cal Poly San Luis Obispo

The question arises again and again — ‘Can we administer a waiver of liability with the computer? Motivations range from reduction of paper work to ease of administration. While case law is available related to the use of waivers in paper format, there have been few if any published legal ‘tests’ of electronic waivers.

Especially critical to the implementation of an electronic waiver are the issues of authentication and affirmation of the user, and this article describes the key process that need to be considered.

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Liability Waivers 101

April 08, 2011

Doyice J. Cotten
Sport Risk Consulting

Where there are fitness, recreation, and sport activities, there are injuries! Unfortunately, where there are injuries, there are lawsuits! Providers of these activities must take care to manage risk in two ways. First, they should take steps to reduce the likelihood of injury as much as possible. Secondly, they should do everything possible to protect themselves and their business entity from the risks of financial loss. A major financial risk is that of lawsuits by parties injured while participating in fitness, recreation, or sport activities.

Injuries in fitness, recreation, and sport activities arise from three sources. They result from either 1) accidents due to the inherent risks of the activity, 2) negligence (errors or mistakes) of the provider, co-participants, or others, or 3) extreme actions such as gross negligence or reckless actions. Generally, the provider is not liable for injuries resulting from the inherent risks of the activity, however, they are held liable for injuries resulting from their own negligence. A waiver can protect the provider from liability for injuries caused by provider negligence. A waiver generally does not protect the provider from liability for extreme actions.

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