Waiver Evaluation Checklist

Requirements of legal contract:

1. Is the wording of the waiver such that it is clear and easily understandable by the patrons

signing it? It is important that the waiver clearly state that the signer is releasing the business from

responsibility for injury to signer caused by ordinary negligence on the part of the business or any

of its employees. The waiver should include a phrase such as, “I hereby release (Business Name)

from any and all present and future claims resulting from ordinary negligence on the part of

(business name).” The language must be simple, straight forward and unambiguous. The waiver

should plainly convey its message and should not be full of legalese.

2. Is consideration denoted within the contract? To have a valid contract, there must be consideration -

that is, something in exchange for something else. A phrase such as, “In consideration of my

participation, I agree to...” indicates that the signer is receiving participation in exchange for

relinquishing the right to file suit.

3. If the signer of the waiver is a minor, does the waiver include a space for a parent’s signature?

The general rule is that waivers are not effective when used with a minor because a minor may

disaffirm a contract made by the minor or by a parent on the minor’s behalf. While a few states

support the use of waivers when signed by a parent, the use of an “Agreement to Participate” might

offer more protection for the sport related business. An “Agreement to Participate” describes the

activity, the conditions for participation and an assertion that the minor wants to participate. This

agreement lays a foundation for an assumption-of-risk defense, in which the participant has

assumed the inherent risks of the activity, but not those risks resulting from the negligence of the

business.

4. Does the waiver specify parties other than the signer who are relinquishing claims by virtue of

the waiver? Additional protection may be gained by including a phrase in which the signer

relinquishes, on behalf of self, spouse, heirs, estate and assigns, the right to recover for injury or

death. Be aware, however, that state laws vary and that this phrase will not be effective in all states.

5. Is the waiver specific as to who is protected by the waiver? All classes of persons or entities that are

to be protected should be listed in the agreement. The corporate entity, employees, volunteers,

agents, sponsors or any others that you intend to protect should be listed. A general inclusiveness

clause such as “...and all others who are involved” should conclude the listing.

6. Does the language broaden the interpretation of what was meant by the waiver? Examine the

agreement for restrictive language and replace it with language that can be interpreted broadly

when the court is determining what was meant to be included in the exculpatory agreement.

Phrases that tend to broaden include: “in all phases of the activity,” and “while on the premises.”

(Take care not to broaden the language too much, however. In light of a recent ruling in Farina v.

Mt. Bachelor, Inc. [66 F.3d. 233 (Cal., 1995)], wording such as “...any and all claims arising out

of...”might be interpreted to include gross negligence and should be avoided.) One example of

effective wording used in a recently upheld waiver [Marshall v. Blue Springs Corp., 641 N.E.2d

92 (Ind., 1994)] is “...as a result of engaging in or receiving instruction in [scuba diving activities]

or any activities incidental thereto wherever or however the same may occur.”

7. Is the agreement free of any untrue or fraudulent statements? A fraudulent statement or

misrepresentation within the waiver will invalidate it. In Merten v. Nathan [Wis., 321 N.W.2d 173

(1982)], the waiver falsely stated that the business carried no liability insurance . The court said that

this constituted fraud and rendered the exculpatory agreement ineffective.

Format and Exculpatory Language:

8. Is the title of the waiver descriptive? It is important that terminology such as “Waiver,” “Release of

Liability” or “Indemnity Agreement” be used. Titles such as “Sign-up Sheet,” “Roster,”

“Application for Membership,” ”Entry Blank,” “Receipt” and “Sign-in Sheet” can be deceptive

and can affect the validity of the waiver.

9. Is the print size large enough to be easily read? States do not usually specify a minimal size, but by

using an 8- to 10- point type size, the business can eliminate the issue if the agreement is

challenged.

10. Is the exculpatory language conspicuous in the agreement? It is important that the exculpatory

language -- the specific statement that the participant will not hold the business liable for ordinary

negligence -- be featured in such a way as to bring attention to it. This may be done by: not burying

it with in the agreement: using bold lettering, underlining or all capital letters; and using notices

such as “Caution: Read Before Signing” before the signature.

11. Is the signature near the exculpatory language? The exculpatory language of the agreement should

be near the signature and certainly not on another page or on the back of the page.

12. Is there a statement by which the signer affirms having read the agreement? There should be, near

the space for the signature, a statement such as “I have read and understand this waiver.”

13. Does the agreement refer specifically to the ordinary “negligence” of the business or its

employees? The use of the specific word “negligence” is required in a few states (including

Florida, New Hampshire, New York and Texas), but it can be helpful to include the language in

any state because it clarifies the intent of the agreement -- and subsequently will significantly

weaken a plaintiff’s allegation of ambiguity. In light of at least one recent case, it would be safer to

specify “ordinary negligence” in order to make it clear that protecting the sport-related business

from liability for gross negligence is not the purpose of the document.

14. Does the agreement include specific mention of any risks that are unique to your business? For

example, auto-racing waivers now include language that protects the business from liability for

negligent rescue operations. In another example, a bar included a statement in the waiver asserting

that the signer was not under the influence of alcohol before the patron was allowed to ride a

mechanical bull. Some waivers used for scuba divers include mention in the waiver of the absence

of a recompression chamber.

15. Does the agreement specify the duration of the waiver? Generally, such contracts continue until

terminated by one of the parties, but it is safer to ensure the ongoing nature of the agreement with

such language as “for injuries now or in the future,” “which may hereinafter occur,” “forever

release and discharge” or “I forever release.”

16. Does the agreement contain a severability clause? A severability clause is a statement within the

document saying, in effect, that if any part of the document is held void, this will have no effect upon

the validity of the remainder of the document. Language commonly used is illustrated by “The

undersigned hereby expressly agrees that this release and waiver is intended to be as broad and

inclusive as permitted by the laws of the State of Missouri and that if any portion hereof is held invalid,

it is agreed that the balance shall, notwithstanding, continue in full legal force and effect.” (See

Vergano v. Facility Mgmt. of Missouri. 1995.)

Other Protective Language Within the Waiver:

17. Does the waiver include a statement of disclaimer by the business? In a disclaimer, the business

asserts lack of responsibility or liability for injury resulting from the provision of the service.

18. Does the waiver include a “covenant not-to-sue”? A “covenant not-to-sue” is an agreement not to

sue to enforce a right of action against the business.

19. Does the waiver include language by which the signer promises to indemnify or repay the

business for financial loss caused by injury to the patron? An indemnification clause is

indicated by such language as, “agrees to indemnify,” :...reimburse,” “...hold harmless” or “...save

harmless.” One who agrees to indemnify a business assents to reimburse the business for the loss

due to the lawsuit.

20. Does the waiver include a selection of venue? Venue selection merely specifies in which state and

county any legal proceedings will take place.

21. Does the waiver clearly describe the nature of the activity? The waiver should describe the activity,

including such aspects as how vigorous the activity is, the fitness level required and anything

unpleasant about the activity. In general, the more familiar the participant is with the activity, the

less detail required.

22. Does the waiver clearly warn of the risks involved in the activity? The waiver should include a

representative list of risks associated with the activity. The list should not be comprehensive, but

rather one that represents the broad scope of possible injuries. Phrases such as, “...including, but

not limited to...” and a list of a few minor, common injuries as well as a few more serious ones,

including death, should be included. The trend in some states seems to be to require that those

signing waivers be warned of the risks involved in the activity. (Failure to warn of the risks

involved was the reason for the ineffectiveness of the waiver in Mauerer v Cerkvenik-Anderson

Travel, Inc. [165 Ariz. Adv. Rep. 51 (1994)].) This section is also important in establishing the

assumption-of risk defense because one may assume only those risks of which one is aware.

23. Does the waiver include an affirmation of voluntary participation? The waiver should include a

statement such as “I understand the risks involved in this activity and am voluntarily participating

in [activity].” This statement is important because the assumption-of-risk defense is effective only

when participation is voluntary.

24. Does the waiver contain a statement by which the signer assumes the risk of the activity? This

statement usually involves such language as “I recognize that white-water rafting is a dangerous activity

and I agree to accept any and all risks.”

Since the requirements for a valid waiver vary from state to state, this checklist was constructed to

conform with the laws in even the strictest states in which waivers are allowed.

Keep in mind that waivers are not allowed in three states (Louisiana, Montana and Virginia), and

that New Mexico and Rhode Island, no sport-related waiver cases have been found. The checklist

should not be interpreted as a substitute for sound legal advice.

Note: There is no scale -- “22 or more” does not equal “Excellent.” Not all points have the same value

in different states. All points are important and should be used in the development of the waiver. Use

the checklist to help you revise a current waiver or devising a new waiver.

Reprinted from: Athletic Business, May 1996. Article by Doyice J. Cotten. Mr. Cotten is a founder of

and consultant with Sports Risk Management, and is a professor of sport law and risk management

at Georgia Southern University.