A Risk Manager’s Thoughts on Waivers
March 31, 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.
Often there are a variety of points of view from different campus stakeholders about the use of waivers. Perhaps they should be used as a part of the application and enrollment process for the college or university? Used only for voluntary activities, but not for course required activities, campus funded activities or off campus activities involving travel?
Assessment and analysis of risks involved in the activity can help identify the opportunity for a waiver to more equitably assign the risks to those benefiting from the activity. High probability plus high severity of injury and/or damage related to an activity creates a high risk. Coupled with voluntary participation and conditions outside the direct control of the college or university, the use of a waiver or release agreement may be very appropriate for these high risk activities.
From a risk management perspective, prevention of injury or damage is always the first objective, with a plan for rapid and effective response to mitigate any injury or damage.
Management of the risks of any activity could include rigorous attention to the safety of the participants and instructors through assurance of the condition of facilities and equipment, and compliance with established standards for the activities involved.
The second objective would be to ensure that there is a financially sound resource to pay for the legal defense of the waiver and possibly pay for the loss if the court does not uphold the agreement. It could be very important for the insurance company to be included in the development of a waiver or release agreement to ensure that all such claim defense efforts and expenses are supported by the ‘insuring agreement’.
A third objective – through collaboration of the academic and/or student affairs program leaders, risk manager, legal counsel, contracts personnel, finance staff and insurance representatives — is to design and implement a waiver process which is easily and consistently managed with identifiable and retrievable documents. This will support the waiver during review by any court.