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).

1. Purpose of a Waiver
   *To limit ability of a participant to sue in the event of negligence.
2. Key Points on understanding Waivers:
   *Waivers can work!
   But each state/ province is different in terms of how it views waivers. Consult Cotten’s manual to determine the situation in your location.
   *Waivers involve Tort law and Contract law
   Waivers are contracts
   *Under contract law, an adult can waive right to sue if
   They understand what they are signing and understand the risks they are assuming
   *A minor cannot enter into a contract hence a waiver signed by minor will likely not stand up in court
   *A minor’s rights cannot be signed away by a parent or guardian (this may be changing in some States — see Cotten’s article)
3. Key Points on the actual Waiver document
   *A waiver document is essentially a two-part document:
   (a) Informed Consent and (b) Release of Liability

(a) the purpose of this section is to describe the risks inherent in an activity. Some institutions stop here — i.e. they use an ‘Informed Consent’ form and not a waiver. This is the kind of form you would use when minors are involved. Parental Consent forms are typically used when children are involved e.g. Summer Camps.
(b) this section is where the person signing the waiver actually releases the university from liability for damages caused in a variety of ways, including through negligence.

4. Key Points to help make Waivers stick
*Make waiver specific to activity
*Ensure wording is clear and easy to read; avoid legalese
*Ensure participant reads/understands form
*Ensure the form refers specifically to ‘negligence’
*Ensure participant signs form prior to the activity
*Always involve your legal Counsel

5. Some General Thoughts about implementing Waivers:
*If you put all your risk management eggs in the waiver basket — you’ve missed the point! Your responsibility is to run safe programs and facilities and not overly stress about whether someone has signed a valid waiver, or not.
*In Campus Recreation there can be serious logistical issues involved in effectively implementing valid waivers (e.g. in Intramurals). From a practical standpoint, ask your legal people (or the institutional Risk Manager) as to what the university wants to do vis-à-vis waivers, and try to educate them about the logistics and practicality of implementing waivers for everyone.
*To address the logistics/ practicality issue, consider the approach taken by some schools which focus on their higher risk activities, facilities and participants and administer waivers in these situations only. Check with your legal counsel on this one!

6. Key Steps in the actual implementation of Waivers
*Keep it simple!
*Process has to be consistent, done the same way by everybody, every time:
1. Give person waiver and ask them to read it
2. Ask person –  ‘Have you read it?’
3. Ask person – ‘Did you understand it?’
4. Ask person – To sign and date it
5. Have the witness sign it.

In the development and implementation of Waivers, always seek advice from your University Counsel/ Risk Manager – and go with what they tell you.