February 25, 2014
Professor of Sports Law
Department of Sport Management
There is perhaps no greater issue in the sport, recreation and health club industries than the use and interpretation of waivers. Considering how important waivers are, and how much they are being used, it is amazing that there is still such a great deal of misunderstanding over their legal value and the protection they can provide. This article attempts to demystify waivers and provide readers with a basic understanding of how they work.
Perhaps, first, and foremost, it is important to note that a waiver is a contract entered into between the user of the recreation or health club services and the service provider. In the contract, the user agrees to relinquish his or her legal right to sue the service provider in the event that the user is injured as a result of the provider’s negligence. In exchange for giving up their legal right to sue the service provider, the service provider agrees to allow the individual to use the recreation and health club’s services and facilities. It is important to note that as a general rule the waiver will only protect the service provider from liability for ordinary negligence and will not protect the service provider or its employees from gross negligence or reckless misconduct.
Second, the legality of a waiver is determined by state, not federal law, and therefore its validity will vary depending upon the state. Therefore, just because a recreation or health club facility uses a waiver legally in one state that does not mean that it will be valid in another state. It should be noted that in at least 43 states, a well-written, properly administered waiver, voluntarily signed by an adult, can be used to protect the recreation or sport business from liability for ordinary negligence by the business or its employees. It should also be noted that in three states: Louisiana; Montana and Virginia all waivers will be void since the courts have found them to violate public policy.
REQUIREMENTS FOR A VALID WAIVER
To ensure that the courts will uphold a waiver, it is important that the service provider consider the following items when writing a waiver:
- Does the waiver use clear, easy to understand language?
- Is there legal consideration in the contract / waiver?
- Is the document clearly labeled a “Waiver”?
- Is the document one page?
- Does it use the word “Negligence”?
- Are there are fraudulent statement in the document?
- Did the person signing the waiver, actually read it?
- Does the waiver cover not only the signer, but his or her spouse and heirs?
- Is there any indemnification language in the document?
Although some of these items might not be required by every court, for example some courts do not require the use of the word negligence, when dealing with waivers, it is better to be safe than sorry.
WAIVERS AND MINORS
Since waivers are contracts, and contracts are unenforceable against minors, the general rule is that waivers are unenforceable against minors. Therefore, since waivers signed solely by the minor are ineffective, providers have a couple of options they can use to protect themselves. First, they can require that the minor’s parent or guardian sign the waiver on behalf of the minor client (parental waiver). While in the past, parental waivers have not been very effective, recently the courts in some states have begun to enforce waivers signed by parents on behalf of their minor children so that now parental waivers are enforceable in at least nine to twelve states. Second, they can require the parent to indemnify the provider for any financial loss they suffer due to the participation of the minor. The two states that have upheld parental indemnity agreements are Connecticut and Massachusetts.
ADMINISTERING THE WAIVER
Many waivers fail to protect the provider from liability because of flaws in the administration process. Some administration guidelines that will help to ensure the enforcement of a waiver are:
1. Be straightforward in explaining the waiver – do not make false claims.
2. Allow the signer enough time to read and sign the waiver before participating.
3. Retain waivers and accident reports in a safe and secure environment.
Attorney John T. Wolohan (email@example.com) is a professor of sports law in the Department of Sport Management at Syracuse University.