The Scariest Four Letter Word in Campus Recreation: Part II

July 19, 2011

Matt Campbell, J.D.
Assistant Director, Campus Recreation
Marshall University

In Part I of this article, we discussed the risk assessment tool developed by Peter Sandman dubbed the “Outrage Model.” In the Outrage Model, Sandman defines risk as hazard plus outrage. Applying this model to risk in campus recreation, we can assign hazard as the objective factor, such as the safety of a playing surface or wear and tear to equipment, and outrage as the subjective factor, such as the criticism and emotional reaction to these hazards. These criticisms and emotional reactions have lead to an increase in litigation and a paradigm change regarding assumption of risk. In Part I, a table showing which jurisdictions are likely to uphold a waiver or assumption of risk clause and which are not was produced. In this article we will outline how to move away from legal jargon and develop an effective, dynamic waiver document.

Many waivers contain archaic “legalese” which is defined as “language containing an excessive amount of legal terminology or of legal jargon.” This is particularly troubling in jurisdictions where the standard for assumption of risk is one where the injured party must understand and appreciate the risk or risks involved with the activity. When the waiver presented for signature contains sections which are long-winded and compounded with multiple clauses it can be very difficult for the party to understand and appreciate the risk they are assuming. These documents will also be looked upon disfavorably by the courts, particularly when they could very easily be rewritten in language which is much more clear and concise. For example, compare this clause:

“henceforth, notwithstanding an intervening superseding tortuous event of gross negligence or willful and wanton conduct, the named party of the first part will absolve, release, waive, discharge, and hold harmless the named party of the second part and all of their affiliates, predecessors, successors, trustees, officers, directors, faculty, employees, agents and representatives, past and present for all claims, costs, and fees arising out of risks associated with participation which may result from a variety of circumstances including, but not limited to, the use or misuse of equipment or facilities, from the activity itself, from the acts of myself or others, or from the unavailability of medical care.”

With this clause:

“By signing this document I am releasing the University, its agents, and employees from all liability related to the risks known and associated with the activity, even if negligent.”

Which of those is easier to understand and appreciate? Even lawyers will have a difficult time parsing the first clause, which is why it is written to begin with!! There is a line of thought commonly referred to as the “coverage of contingencies” – or “kitchen sink” in layman terms–whereby anything that can or may happen should be put in the language, even if it creates dyads and triads of clauses and statements . . However, with more suits arising in courts and more jurisdictions moving away from the standard assumption of risk claim as a complete defense to a claim, the ‘kitchen sink’ approach doesn’t always work.

For example, a recent Delaware case returned a judgment in favor of the health club user when he brought suit for the health club negligently maintaining pool steps. (See Slowe v. Pike Creek Court Club Inc., C.A. No.08C-08-029 PLA (Del. Super. Dec. 4, 2008).  In Slowe, the court held that the “liability waiver was devoid of any language indicating that the parties contemplated that the waiver would cover acts of negligence covered by Pike Creek Court Club.” Further, the waiver’s reference to ‘any and all’ injuries was determined insufficient and too ambiguous. The court went on to state that while an exculpatory clause need not itemize every conceivable injury or loss intended to fall within its ambit, it must nonetheless “clearly, explicitly, and comprehensibly” state the risks the parties intend to cover. A hinging point in this discussion was that the health club did not state that the member would release them from liability for their own negligence.

When drafting a legal document, it is important to follow a three step process. First, identify all extrinsic risks and attempt to eliminate them. This first step is a pro-active measure used to ensure the safety and enjoyment for all patrons and participants. This should be done through a risk assessment tool such as a risk audit on a routine basis. Second, identify which risks cannot be eliminated and have legal counsel prepare a document whereby the patron/participant understands these risks and waives any claims arising due to injury from these risks. This is the key step in the process, as it will narrowly tailor the release document to only those risks which have been identified and could not be eliminated, but will also be sufficiently broad to cover items that a reasonable person could appreciate.

The third and final step in the process is to review the document produced by legal consul. Have a control group of staff and patrons of varying degrees of educational background and mental acuity review the document. Do they understand what they are signing? Do they know that by signing this, they are waiving their rights to file a claim, even if the department is negligent? If a majority of them do, then you have a soundly worded document where risks have been identified and addressed in a manner which is easy to read and devoid of excess “legalese.” Ultimately, a clear and concise waiver will go much further in protecting a program from liability than wordy and overbroad document.