What is a Liability Waiver & Why Should I Use One?

In a nutshell, a liability waiver (also known as a "liability release") is a legally binding contract between two parties that addresses the risks involved in a given activity. In our context, it's between the traveler or participant and the activity operator.

A waiver has two primary purposes. First, it informs participants about "inherent risks" (i.e., potential risks that come baked into the activity, that we know about, and that can be accommodated for). Second, it allows participants to release the travel company from the liability that comes with those risks.

Waivers are pre-activity agreements. In other words, the participant agrees, in advance of an incident occurring, not to hold the travel company accountable for harm that might arise from ordinary negligence. This is different from, say, a settlement, where a participant agrees not to pursue legal action after an incident, usually in return for some financial offer.

At the end of the day, a liability waiver or release is a legally binding document that educates your guests and protects your business.

The most obvious reason to use a liability waiver is that travel companies want to protect themselves from claims of injuries or damages that arise from mishaps (physical or financial) that might happen on a trip. That's the big one. Mitigating liability—especially in the adventure travel industry—is a serious concern, and waivers go a long way toward doing that.

Another reason to use a waiver (as mentioned already) is that it educates the traveler about the potential risks of a trip. This is key, since not everyone is willing to accept those risks. For those people, the waiver serves as an important screening tool. It can give them a chance to decide whether the activity is right for them before they fully commit to it.

While you certainly want as many people as possible to book trips, a small percentage of those people may really not be right for that activity. They may be frightened by the experience or angered by the risks involved (if they didn’t know them before).

In other words, releases are a good way to figure out if a traveler will have a positive experience on a particular trip. After all, you really only want the guests that you can actually make happy. And finally, the third reason to use a waiver is that insurance companies will oftentimes require that you have one before they will insure you.

So, those are the three key reasons. The bottom line is a liability waiver is an important piece of your risk management program in the adventure space. Traveling itself, as well as participating in an adventure activity, carries its own particular risk, and using a waiver helps prevent that risk from harming your business.

This is a question that comes up often for legal counsel in the travel industry, and the answer depends on where you do business. In most states here in the United States, waivers are actually binding contracts, provided a) the traveler agrees to the waiver by signing it, and b) the waiver meets certain conditions.

Be aware: this is one area where you really need to consult a local legal professional. Laws vary wildly between nations, and even within states or provinces of the same nation.

For example, in the United Kingdom, the idea of a waiver that releases a company from negligent acts is a foreign concept, while it's acceptable here in the United States for voluntary activities like adventure travel. The United Kingdom has very specific laws around package holidays, and tour companies in that nation cannot waive ordinary negligence as a result.

Now, with respect to the conditions that must be met, you'll again have to consult an expert in your area. It is important to note, however, that regardless of your location, courts don't like waivers. They are disfavored because travelers give up a lot of rights by signing them. So, should you ever be in court defending your waiver, be aware that the court will heavily scrutinize it.

Bottom line: you'll want it to be airtight, and that only comes with help from a professional.

*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.

Other Sections:

• How to Write a Liability Waiver
• Key Components of a Liability Waiver
• Liability Waivers and COVID
• Benefits of Electronic Waivers
• ATTA Partnership with WaiverSign
• Benefits of Using WaiverSign
• Online Waiver Questions from Tour Companies