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To Waiver or not to Waiver
Waiver Requirements
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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