Is It Worth It To Draft A Liability Waiver?

February 19, 2021

As a business owner, you might find yourself wondering if drafting a liability waiver is worth the trouble or not. A liability waiver has two main protective purposes. First, the use of contract law principles in the form of a waiver or release to excuse an organization for simple negligence. Second, as a form of written evidence that the organization has provided warning of the inherent risks involved.

For example, a sports organization uses a waiver to detail the known and unknown risks of injuries which may arise from participation in the sports. In the event of a lawsuit, the waiver can be used as proof that the participant has been an informed decision to participate in the sports willingly and that the sports organization has done its due diligence in sharing the risks involved accordingly.

By providing evidence that the party involved was warned of the risks involved, an argument can be made that the involved party (participant) has assumed the risks. This can be used to trigger the common-law assumption of risk (AOR) as a defense.

While it is important to ensure that the proper risk language has been used in the waiver, other evidence can be provided as proof that the organization has given sufficient warnings on the risks involved. Such evidence can come in the form of signs, verbal instructions, safety briefings, and brochures can be used to proof that the organization has provided sufficient warnings of the risks involved. 

How Effective Are Waivers?

A waiver can typically only be upheld during a lawsuit when the following conditions are met:

  • The waiver does not violate public policy or any state laws.
  • The waiver has been worded according to state laws which the organization is in.
  • The injury occurred from the risks that were stated in the waiver.

Although laws on waivers vary depending on the state, when it comes to adult injuries, waivers can be effective. Once all three conditions mentioned above are met, the lawsuit may be dismissed on summary judgement. In doing so, this can help reduce the legal cost drastically as dismissal on summary judgement means that the litigation process is concluded early.

Depending on the state that the organization is in, however, there may be situations in which a waiver may not be upheld even if the conditions above are met.

  • The involved party is a minor. Minors are not seen as legally competent, therefore binding agreements such as a waiver do not count. In certain states, however, parents may be allowed to sign waivers on behalf of their children.
  • The waiver goes against public policy of protecting the public, in which case the courts will deem the waiver as unenforceable.

How Can I Implement A Liability Waiver?

Waivers can be printed out and signed in paper. Depending on your business process, it may be good to have your customers or contractors sign them at the door or before any work proceeds. Alternatively, waivers can now also be signed online. Electronic waivers can be sent online to the involved parties, allowing you to even obtain the waiver in advance.

Contact us at WaiverFile today if you would like to find out more.

Disclaimer: The content on this site is not legal advice. No attorney-client relationship is established. To ensure your online consent form is legally binding based on your location, industry, and specific circumstances, consult a legal professional in your area.

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