Over the last three years, two personal injury cases on divergent courses made national news. In Pennsylvania, 63-year-old Patricia Evans fractured her wrist while doing “suicide runs” – a set of intense agility movements – under the direction of an LA Fitness personal trainer. In Missouri, Jonas Barrish damaged a spinal disc when he disregarded his CrossFit instructor’s warnings and attempted to deadlift a weight well in excess of the recommendation.
In court, Evans went home empty-handed. Barrish received $200,000 in damages.
The difference lay in a one-page liability waiver, buried in the stack of intake documents that new gym members are given, which Evans signed and Barrish did not.
This example illustrates the real-life power of a liability release form. If your business involves activities that present a risk to customers, employees, agents, or invitees, you need to secure a signed liability waiver. The waiver form itself must be narrowly tailored to the activity but broad enough to protect against every associated risk.
Crafting Your Waiver Form
Liability waivers have three goals in mind: to identify risks, to evidence that the participant acknowledges and accepts the risks, and to indemnify the company facilitating the activity.
Describe the Activity. Early on, the waiver should identify the activity or activities in general terms. Don’t be so narrow that you exclude legitimate risks that participants may face. Something as simple as “ziplining” or “inventory movement” may be enough.
List the Contemplated Risks. This inexhaustive list should include the most common and dangerous risks associated with the activity: death, physical injury, illness, and economical or emotional loss, for example.
Voluntary Participation. This statement should be conspicuous in the document (bold, capitalized), and should state that the participant voluntarily undertakes the task at his or her own risk and is aware of such risk.
Indemnification. Here, the participant agrees to indemnify and hold the company harmless against all disputes as a result of injury or damage from the activity. This provision may go so far as to indemnify company agents for errors and omissions. However, courts are hesitant to extend waivers to acts of negligence; so be aware that there is an outer limit to the utility of the waiver.
List Those Indemnified. The waiver should list all who are exculpated: the company itself, along with its affiliates, managers, agents, attorneys, staff, volunteers, etc.
Acknowledgement and Understanding. Just before the signature, this provision should state that the participant has fully read and contemplated and understands the contents of the liability waiver.
Execution. The participant should sign not just for himself, but on behalf of his heirs, assigns, and personal representatives so that no one else can inherit the claim if the participant becomes deceased or disabled.
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