Law Talk – Release of Liability Waivers

Important things to remember: 

  • State law Insurance
  • Requirement 
  • Engage and explain
Be it tournaments, martial arts class, or just a day at the water park, release of liability waivers, or “liability waivers” for short, are a constant everyday life. Should I have one? Should I sign one? Is this enforceable? Am I protected as a business and as an individual? Is this thing enforceable? All of these are good questions. A liability waiver is only as good as it is applicable to State law. Once again, this is a lesson in “why I need a lawyer.” Pulling a waiver off the
internet and plugging in your own information may cover you, but honestly, do you want to put your faith and livelihood in the hands of a Google search?
In the martial arts setting, liability waivers are intended to protect an organization from a lawsuit if someone is injured while participating in activities or using equipment at the facility. The most common clause in a liability waiver is an “exculpatory clause.” This language attempts to protect one party against a lawsuit by another party, even if the first party was negligent. For instance, an exculpatory clause in a tournament waiver might state that if the participant who signs the waiver is injured, the participant may not sue the tournament organizer, host, or anyone on its staff, even
if the organizer or staff member’s negligence caused the player’s injuries.
Not liable, even if the organizer or staff member’s negligence caused the player’s injuries?
That sounds comprehensive and perfect, correct? Well, no. Depending on applicable State Law, this clause may or may not be valid. For example, Texas and Louisiana, though close in geography, have very different liability protections for consumers.
The aspect of liability that most business owners do not think about is – type of negligence covered in a liability waiver. There is a difference between ordinary negligence and gross negligence. While it’s true that waivers of liability can insulate organizations and businesses from legal responsibility for acts of negligence (i.e., lack of reasonable care), a waiver DOES NOT protect against gross negligence. Gross negligence is the deliberate disregard for safety by an act
or omission by the host or owner. Basically, the host knew or should have known the person would put another in danger. Ordinary negligence is identified by careless mistakes or inattention, like failing to check equipment before a sparring match. Seeing a metal object in sparing gear and allowing the participants to spar would be gross negligence. A release of liability waiver only covers ordinary negligence.
A similar clause that may be seen in activity waivers is an “assumption of risk” clause. In an assumption of risk clause, the person signing the liability waiver indicates that they know the activity involves certain risks but are willing to participate anyway. For example, a waiver for a tournament team might include an assumption of risk clause stating that the participant is aware that concussions, bruises, and sprains are risks involved in playing the particular sport.
An assumption of risk clause allows a party to claim in court that they should not be held liable because the injured person “assumed the risk” of an activity. Assumption of risk clauses also have limits, however. A court is more likely to decide that an assumption of risk clause does not apply if the injury resulted from a risk that was hidden, known only to the negligent party, or was not foreseeable. Practicing judo without having proper mats could result in an invalid liability waiver as the owner/instructor should have the knowledge of the proper equipment while the student may not.
While pulling that release of liability waiver from the internet, you may not think about your insurance company. Your insurance company is a resource to be used when it comes to finding the correct liability waiver for your business or event. As a business owner, you should ask about coverage for regular course of business versus coverage for events. Find out what is covered and what are the exceptions to coverage. If there is an exception to coverage, this action should be in the drafted liability waiver.
Lastly, in sales, there is almost always a script to be followed in order to sign up a new member. Scripts should not end with sales. The salesperson should be aware of EVERYTHING in the liability waiver and be able to explain the clauses. There should be more than “this is a liability waiver, sign here.” Sales staff should know the difference between ordinary and gross negligence and be able to explain the difference. It would be gross negligence to allow beginners in a preschool class to practice drills with bladed weapons. If the instructor allowed that, injury would not be covered by a waiver. Anticipating questions on the liability waiver is just as important as handling objections of a sale.
waiver 2
Below is some sample language that a program director could understand and explain:
  • By signing this, you agree to conduct yourself in a controlled and reasonable manner at
    all times and to refrain from using any equipment in a manner inconsistent with its
    intended design and purpose. Use of the equipment, including training weapons, involves
    risk of serious injury.
  • If you suffer from any known disability or condition which would prevent or otherwise
    limit participation in this physical program, we need to know and have a doctor’s
    approval for participation.
Once again, the lesson learned here is that you need a lawyer for a Release of Liability Waiver. Even if you simply pull one from the internet, you need to have a lawyer review for applicability of state law.

The information contained in this article is provided for informational purposes only and should not be construed as legal advice on any subject matter. You should not act or refrain from acting on the basis of any content included in this article without seeking legal or other professional advice.

Author:  Laurie Hunter Peterson
Laurie Peterson