Neil Dougherty Rutgers University New Brunswick, NJ LEGAL QUADRIVIUM XXI LIMITING LIABILITY THROUGH WAIVERS AND PARTICIPATION AGREEMENTS Neil Dougherty Rutgers University New Brunswick, NJ

Waivers A waiver is a contract whereby, in return for being allowed to take part in an activity or program, a participant releases the provider(s) from any fault or liability for any loss that might occur as a result of the ordinary negligence of the provider it’s agents or it’s employees in connection with the specified activity or program.

Waivers Enforceability varies on a state-by-state basis Waivers are most effective: When executed by adults When reasonable options are present In the private sector When the participant relinquishes the right to sue voluntarily and intelligently with full knowledge and acceptance of the legal consequences

WAIVERS: GENERAL GUIDELINES Make the purpose clear in the title Use words like waiver or release of liability, instead of sign-up sheet, roster, or membership application. Make the exculpatory language conspicuous. Focus attention on the specific statement that participant will not hold provider liable for ordinary negligence. Use boldface, underlining, italics or color as well as a clear admonition to read before signing.

WAIVERS: GENERAL GUIDELINES Specify all parties, in addition to the signer, who are relinquishing claims through the waiver. “Any and all claims on behalf of myself, my family, my heirs and my assigns…” Specify all parties who are protected by the waiver. “Corporate entity, employees, sponsors and all others who are involved in the development, delivery and management of…”

WAIVERS: GENERAL GUIDELINES Choose an easily readable print. Make the wording clear and easily understood. Avoid legalese. Include an affirmation of voluntary participation. Put the signature space near the exculpatory language. If there is a separation of a paragraph or more, consider providing a space for initials immediately after the exculpatory clause.

WAIVERS: GENERAL GUIDELINES Use language that will broaden the interpretation of the waiver. “In all phases of the activity”…”while on the premises”…”any and all claims arising out of…” Refer specifically to the ordinary negligence of the business or it’s employees. Consider the inclusion of an agreement to submit to binding arbitration; especially where minors are involved. A parental acceptance of binding arbitration “only specifies the forum for resolution. It does not extinguish the claim.” Hojnowski 187 N.J. 323 (2006)

WAIVERS: GENERAL GUIDELINES Consider including a severability clause stating that if some part of the contract is held void, there will be no effect on the remainder of the agreement. Include a statement of affirmation that the signer read and understood the agreement. In general, use waivers with adults and minors. Have a parent or guardian sign on behalf of the minor child. Even if all or part of the waiver is invalidated by the court, there is no downside.

PARTICIPATION AGREEMENTS A participation agreement is a formal document indicating that the participant and, where appropriate, the participant’s parents: Understand and appreciate the risks involved in the activity. Know the safety rules and procedures, understand their importance and agree to comply with them. Specifically request to participate in the program or activity.

EFFECTIVE PARTICIPATION AGREEMENTS: Are clearly and explicitly worded. Clearly explain the nature of the activity. State in detail the inherent risks of the activity and the potential consequences to the participant should an accident occur. Draw specific attention to any risks that are unique to the activity (e.g. theft or loss of personal property in a fitness club). Identify the prerequisite skills and/or the level of physical ability necessary for safe participation.

EFFECTIVE PARTICIPATION AGREEMENTS: Identify the essential safety rules and procedures that must be followed. Include affirmation that the participant: possesses the requisite levels of skill and physical ability; agrees to assume the risks inherent in the activity and; recognizes the significance of the identified safety rules agrees to follow them.

EFFECTIVE PARTICIPATION AGREEMENTS: Do not offer absolute protection from a lawsuit. Provide persuasive evidence in support of primary and secondary assumption of risk defenses. Should be combined with the waiver and other elements such as a selection of venue or an indemnification agreement to make a much more effective “total Package”; all of which should be reviewed by the organizational risk manager in consultation with legal counsel.