Writing a liability waiver is something that should not be taken lightly. Snagging a template online and calling it good could spell financial ruin for your organization. The small investment in legal help from someone who specializes in the field of liability waivers may pay dividends for years.
In this section, we’ll cover the importance of making liability waiver language clear, conspicuous, and voluntary. We'll also answer the common question regarding whether or not people can sue if they have signed a waiver.
First, your liability waiver or release form has to be clear. Make the intentions of the waiver obvious, and make the language easy to understand. It should be written for a person of ordinary or average intelligence to understand without getting any additional explanation. The language of the waiver should avoid needlessly complex words, and they should never be designed to be confusing.
Most of all, the signers should know what rights they are being asked to give up, and what rights they are retaining.
There will obviously be legal terms in the waiver that people might not understand because they're not lawyers. But you can still give them context clues so they can infer the meaning of those words. Ultimately, your guiding principle should be "if you can use a simpler word, do it," since it's in your business's best interests for travelers to understand your waiver.
You also want the liability waiver to be conspicuous. It should not be buried or easily overlooked. Travel companies frequently ask whether the waivers can be included in the terms and conditions, or whether it should be a standalone document, and it's a fair question.
The answer in the majority of cases is that it should be a separate form, one that clearly communicates that by signing it they are giving up certain rights. This is because courts will look and see whether or not the language was conspicuous.
If the rights they're waiving are hidden among a bunch of other unrelated terms—if you're, say, talking about luggage requirements in one paragraph and that they waive all these rights if you're injured in the next—courts don't look favorably on that. It's much better for these things to be as hard to ignore or overlook as possible.
Finally, you'll want to make sure that the waiver is signed voluntarily. This is where you get into questions about where to incorporate the waiver in your signing process. You do not want to give the travelers the waiver right before the activity if you can help it. For most businesses, you'll want to give your traveler as much time as possible to review and sign the waiver.
What you're trying to avoid is having a traveler tell a court that they signed the waiver "under duress." If you leave them no time to read it before the experience starts, and they have to sign it before they can participate, that leaves them some wiggle room (legally speaking) to make the "under duress" claim.
Now, if you’re using paper waivers, this presents a bit of a problem, as it's not very easy to get people to sign paper waivers before the activity. Using a digital waiver solution makes it a lot easier to get travelers, guests, and participants to sign their waivers ahead of time. We’ll talk more about that in a later section.
For now, just remember to give signers as much time as possible to review the document.
Liability waivers don't function as a magic wand, making your legal disputes disappear and making liability issues a thing of the past. People can and do sue, even after they've signed a waiver (see the above warning about signing under duress). The longer you're in business, the greater the odds you'll have to deal with a dispute. That's just how it is.
But by having a waiver, you can deter lawsuits, making the plaintiff's case less attractive to their lawyer in the first place. You'll also, as already mentioned, educate travelers of the dangers of the activity and screen out unsuitable participants, and you'll provide yourself with a legal defense since that person entered into a contract with you and released you from liability. Lastly, you'll have evidence that they assumed the risk of the activity.
It is important to remember, however, that a waiver also does not release you from liability for everything. It's against public policy for people to waive instances of gross negligence or intentional misconduct, so let's give a brief explanation of what those two things are.
Gross negligence means something more than ordinary or simple carelessness. Where simple negligence can be failing to pay attention, assuming an issue is harmless, or forgetting to check something, gross negligence is a reckless disregard of another person's welfare. It requires knowing that what you're doing (or not doing) has the potential to cause real harm, and then failing to do things properly anyway.
Intentional misconduct, on the other hand, simply means that the harm was intentional. This differs from gross negligence in that negligence doesn't actually intend to harm anyone. With negligence, you're aware of the potential for harm, but don't care enough to remedy the situation. With intentional misconduct, you want someone to get hurt.
Those kinds of bad behavior are not what courts want to encourage. As a result, signers can't release you from those liabilities, and you'll most likely be held fully accountable by the court. For simple negligence, though, waivers can go a long way toward protecting you against disputes.
*As part of WaiverSign’s partnership with the Adventure Travel Trade Association (ATTA), we jointly hosted a webinar on August 25, 2020. In that webinar, Online Waivers & Digital Release Forms, lawyer and adventure travel legal expert Chun T. Wright discussed participant liability concerns, and how online waivers help with mitigation. This page was adapted from that presentation.