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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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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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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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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