How to Write an Effective Waiver
Five steps to follow in writing a waiver and release agreement for your facility.
Writing a waiver and release agreement is one of a facility owner's most important undertakings, but it is all too often overlooked or treated as an afterthought. The dangers of this should be obvious. Something thrown together may not protect an owner in the event of an accident, and if it's written after a facility has already been in operation for several years, the owner is left with the procedural nightmare of having to get every customer to execute a valid waiver agreement after the fact.
This problem can be avoided, and better protection provided, if these five steps are followed when creating the agreement:
Learn your state's law.
Every state is different. Some states, like California, have an entire statutory scheme devoted to health club contracts that governs the precise language that needs to be in a waiver agreement. Any deviation from the numerous requirements adopted by the state legislature will render the membership agreement and any waiver and release contained therein void and unenforceable. The most effective way to learn these rules and to make sure you comply with the requirements is to join and use the resources of local or statewide organizations devoted to your specific industry.
Know what the courts are looking for.
If you end up in litigation, the validity of the waiver and release agreement will be determined by a judge in your state. The best way to know what the judge wants to see in an agreement before enforcing it is to read prior agreements that judges have upheld. These agreements can usually be found online.
Include both waiver and indemnification language.
When a person signs a waiver, the result (assuming that the agreement is found to be valid) is that the injured party has relinquished the right to sue for damages. Some states do not allow you to relinquish this right. This can also change overnight in states where it is now allowed. A facility owner's best protection against this is to include an indemnification clause in addition to the waiver clause. Indemnification allows the sued entity to seek reimbursement for all costs and fees (and the amount specified in any judgment) from the injured party. This type of agreement is allowed in more states than waiver agreements and, if properly worded, also provides some protection against lawsuits by people other than the person signing the agreement.
Emphasize general facility use.
Many waivers focus on exercise, use of equipment or sports participation. The most effective waivers are broad in scope and emphasize general use of the facility, regardless of the activity undertaken at the time of the injury. This approach allows for one waiver to deal with injuries during activities as well as slip-and-fall injuries in a walkway or a shower area.
Include the term "negligence."
The law varies from state to state with regard to the specific language required in a waiver to waive negligent acts of entities or employees, but it is clear that the more specific the language, the more likely it is to be upheld by the courts. Using "negligence" in the language makes it clear that the agreement was intended to waive the negligence of the facility. If the negligence issue is not clearly addressed in the agreement, there is little chance of resolving the lawsuit prior to trial, which results in substantial legal fees — whether or not the facility ultimately wins the case.
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