Waiver and Participation Agreements
What is a waiver? It is a contract between a participant and the organizer of an event or activity stating that the participant releases the organizer from any fault or liability for injuries resulting from participation in the event or the negligence of the organizer and their employees. Negligence is the failure to act as a reasonable and prudent person would in similar circumstances. Because of the differences in the law of each state it is critical that you seek advice from an attorney licensed in the state where your event will be held. We have provided the following general guidelines to consider when evaluating the sufficiency of the waiver.
- Be aware of any laws specific to your state
Though waivers are used at events everywhere, each state has different case law and nuances that determine how much protection they provide, specific language requirements and procedures for how the waiver is presented to the signor. Because of these distinctions it is critical that you consult a local attorney to see if your state has any laws that could affect how the waiver should be written or presented.
- Drafting the waiver
The language in the waiver should be as straightforward and clear as possible so that those who are signing it can easily understand it. A well-prepared waiver will usually include a description of the activity, the dates the waiver covers, and the potential risks involved. Some states require special language to be used in the waiver to give it effect. Be sure to consult an attorney to see what language your state requires.
- Appearance of the waiver
The format of the waiver and how it is presented to the person signing are also important. Again, you want to keep the format straightforward and clear to make sure that the participant understands what they are signing. There are three basic types of formats: the stand-alone waiver, a waiver within another document, and a group waiver. The stand-alone waiver is generally the best format because it is its own separate document and allows you more space to clarify exactly what the risks are and what rights are being waived. No matter which format you choose, be especially aware of the use of headings and subheadings, these will make sure that the participant recognizes they are signing a waiver. For example, using the heading “Release of Liability” is much clearer than using “Group Sign-In.” Finally, be aware of the font size: if you use such a small font that most people can’t read the document, the waiver probably won’t be helpful in court.
- Avoid any misunderstanding of what the waiver covers
It is very important that participants are fully aware of exactly what they are signing in order for the waiver to be enforceable. It shouldn’t come as a shock that a waiver is unenforceable if it is signed as a result of fraud or misrepresentation. If you are completely upfront about what the waiver says but the person signing it is not able to understand, for example because of mental incapacity or intoxication, the waiver will probably not be enforceable.
- Avoid any misunderstanding of who the waiver covers
In addition to the participant you should also consider including a section waiving the rights of third parties, such as the participant’s spouse, parents, or children. For example, a loss of consortium clause will waive the spouse’s rights if the participant is harmed, even though the spouse did not sign the waiver.
Waivers and minors generally do not go well together. Because minors are generally not held to contracts in the same manner adults are, it is very important to require a parent or guardian to sign the waiver for any minor participating in the event.
- Release from personal property and rented equipment
A waiver should cover more than just personal injury risks; it should also include any potential risk to the participant’s personal property as well as injuries resulting from rented equipment. Since participants will generally have personal property with them, such as a bike or a cell phone, you should include something in the waiver that will release you from liability if that property is lost, damaged, or stolen.
- Protecting against your purposeful, reckless, or willful misconduct
Almost no state will allow a waiver that releases you from liability from purposeful, reckless, or willful misconduct. What is considered misconduct in one activity can be considered normal for a different activity. The key case for this rule is Knight v. Jewett, 3 Cal.4th 296 (Cal. 1992), which involved a participant in a touch football game being hurt by another player. The court held that while you generally are not liable for the risks inherent to the sport, you “do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” In mountain bike terms, putting a jump in the middle of a downhill course would be considered an inherent risk, but putting a jump in the middle of a beginner-level trail without warning the participants beforehand might be seen as increasing the risks inherent to the activity and therefore a possible example of misconduct. If the conduct seems out of place for the activity, it will likely be considered misconduct unless you have sufficiently warned the participants.
- Health history, emergency medical authorizations and agreement to follow the safety rules
For recreational activities it is especially important to request that the participant disclose any medical conditions or major health problems. For example, it is important to know if a participant is epileptic so you will be more prepared if they have a seizure. It is also important to get everyone’s authorization to emergency medical treatment. If someone is injured they have then already agreed to first aid, CPR, emergency transportation, etc. This is especially important if someone is unconscious and unable to agree to medical treatment later. Finally, the waiver should state that the participant agrees to follow all of the safety rules provided.
- Further protection with an indemnification clause
Another source of protection that a waiver can include is an indemnification clause. An indemnification clause allows you to seek reimbursement for money if you are forced to pay to a third party, like an attorney, because of the actions of the person who signed the waiver. If your waiver is enforced the court could decide that not only did the participant lose the lawsuit but they also have to repay you for your court expenses.
- Including a mediation/arbitration clause in case of a suit
In case a participant does sue you, it is helpful if the waiver they signed included an agreement to either mediate and/or arbitrate any future legal claims. This basically will mean that instead of going to court for a typical trial, you will go to a mediator who will help the parties work out an agreement or an arbitrator who will decide the case. While this will not prevent the case from going into the court system they can be more favorable than a typical court trial.
- Selecting the venue for potential future law suits
Generally lawsuits on personal injury are located in the state where the injury occurred. However, having out of state participants can cause issues. By having the participant agree to the venue in the waiver you can ensure that any potential suits will take place at a location convenient for you. Without this clause you could end up in a distant state defending a case, which would make it even more expensive.
- Keep the waivers after they have been signed and the event has concluded
Do not throw away signed waiver even though the event is over! Even though the event went off beautifully and there were no injuries, it is still vitally important to keep the waivers as protection. It is always possible that someone won’t decide to sue until months or even years after the event is over. It is a good idea to keep the waivers until your state’s statute of limitations has expired. The statute of limitations is a specific time frame in which a suit can be brought, this can range from a couple of years to ten. Once that period has expired, the suit cannot be brought. Consult with your local attorney to find out what the statute of limitations is in your state to decide how long the waivers should be kept.