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To Waiver or not to Waiver
February 11, 2003
Story by: Chris Jackson
Most Participant Liability Insurance Policies
now require that participants sign waivers.
These waivers vary from policy to policy,
and their legal implications vary jurisdiction
to jurisdiction and case by case. If the
participant is a minor, a parent or legal
guardian must sign the waiver.
Generally, waivers are used when there
is a risk of being held responsible for
something that should not be your responsibility.
In the case of sports, it is a known that
accidents do happen.
All participants, parents and legal guardians
know this prior to registering. The waiver
is primarily a proof that the participant
acknowledges, understands and accepts this
risk, and as a consequence has waived the
right to hold the sports organization responsible
should an accident occur.
Are you really waiving anything?
The legal implications of waivers can be
somewhat different. As liability suits generally
take place in state or provincial courts
much variance exists between the jurisdictions.
However, most do adhere to the rule that
you cannot sign away your rights. So if
the accident is due to negligence, the participant
may, in some cases, be able to hold the
organization liable regardless of the waiver.
Further, many waivers are incorrectly worded
and in some jurisdictions, these wordings
may even be illegal. This is the case for
all jurisdictions that forbid a parent or
legal guardian from waiving a minor's right
or in the case the law holds one party strictly
liable for certain acts regardless of any
waiver.
Other elements that will affect the legality
of waivers include when a hardship is placed
on those who will not sign the waiver, where
the organization is for profit, the age
of the participant, cause of the injury,
and where the person signing the waiver
adds terms such as "under duress".
How do you proceed?
If you are a participant, read the waiver
and if you are in agreement sign it. Behave
in a responsible manner, and assume that
the waiver has waived your rights and therefore
it is up to you to behave in a prudent manner.
If you are the coach or part of the organization,
read the waiver and if you are in agreement
have your players sign it, then, behave
as if no waiver or insurance is in place.
Personally check the field and facilities
for things that may cause accidents, and
do not hesitate to call the game if you
believe people are going to be injured.
Form and Content
There is no guarantee of a summary judgement,
but improperly worded waivers are almost
guaranteed rejection. Insureds should rely
on their own insurance and legal counsels
when preparing the waiver and process for
actual use.
Guidelines for preparing waivers
Keep wording as clear as possible. Keep
form to one sheet and to a single purpose.
It can be confusing if it is part of a ticket
or registration form. Make the form a serious
legal document with red ink, use of legal
seals, bold print and headings. The title
should be bold, large, and obvious that
this is a waiver of important rights. Make
it clear that the signing participant understand
and accepts that the risk of serious injury
exists, whether from a known risk or unknown
risk. Put all phrasings in first person
("I acknowledge…I accept").
Specify that the waiver also applies to
negligence (liability through breach of
a duty of care). Include specific risks
only if they are unusual and relevant. The
release of the insured (and all who act
for the
insured) should be on behalf of his/her
heirs, assigns, and next of kin. To document
their assumption of risk, have minor participants
sign prior to their parent or guardian.
Have the parent/guardian release and indemnify
the insured, as well as agree to the participation
of their minor child. Have your waiver and
related procedures reviewed by your insurance
broker and lawyer. Finally, even summary
judgements entail legal expenses. Be properly
insured.
http://www.baffincommercial.com
Copyright (c) 2003 Baffin Commercial
About the author:
Chris is with BaffinCommercial.Com insurance
broker`s and specialized in sports and events
insurance as well as being a part-time athlete
and coach
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