Liability waivers are an essential part of an outdoor/adventure company’s risk management strategy. They are designed to limit the liability of a company and its employees to an adventure participant should that participant become injured as a result of activities put on by the company.
A well written waiver, though, isn’t worth the paper it’s printed on unless it is administered in a way that won’t cause the court to refuse to enforce it. Here are some important steps to keep in mind when implementing waivers.
Confirm the clients are who they say they are.
It goes without saying that the person who signs the liability waiver should be who he/she says he/she is and is the participant in the activity. The simplest solution for an outdoor/adventure business is to always ask clients for identification – and to check it! – when the clients are signing the waivers.
Of course, there may be situations where clients don’t have their IDs on them (for example, once they have changed and are about to depart for the activity). In such circumstances, companies could consider ensuring that their clients receive and execute the liability waivers far enough in advance of the adventure’s start that they will still have easy access to their personal belongings.
Give clients sufficient time to read and sign the liability waivers, and do not pressure them to sign.
A court will be hesitant to enforce a liability waiver – regardless of how applicable it is to the resulting event/harm – if the client has not had enough time to review and understand its contents before signing. As such, outdoor/adventure companies should ensure that the waivers are presented sufficiently far in advance of the adventure’s start that the client will be not be rushed and will have plenty of time to read and consider it before signing.
Similarly, Outdoor/Adventure companies should not:
- pressure customers to sign the liability waivers, even if their failure to do so will cause difficulty to the company or the activity (for example, requiring the non-signing customer to be transported away from the activity start, delaying the rest of the group)
- take any actions or make any statements that could be viewed as “economic pressure” (for example, telling a client that he/she will not get a deposit or the activity fee returned if he/she does not sign the liability waiver)
- be rude, belittle or make the client feel inadequate, “less of a man,” etc. as a means to overcome reluctance to sign the liability waiver
It also goes without saying that outdoor/adventure companies should check that clients have completed the entire liability waiver and that they have filled out all the required information (name/address on first page, initialed where indicated, signed the last page, etc.).
Ensure the client actually consents to the liability waiver.
This is partly addressed by the liability waiver itself, which requires clients to sign/initial sections confirming that they have read, understand and consent to it. If, however, an outdoor/adventure business is aware that the client has language difficulties (i.e. does not read or understand English), it is not likely that the signed (English) liability waiver will be found enforceable. Translations to other languages may have to be arranged.
As previously mentioned, the client must be given adequate time to review and consider the liability waiver, unrushed and without pressure, before signing. If this does not occur, it can be argued that the client has not properly consented, regardless of his/her signature on the waiver.
For example, presenting the liability waiver to the client immediately prior to the group’s departure from the trailhead – and making it known that it is the last thing standing in the way of the start of the adventure – could easily lead to an argument that the client’s signature does not evidence effective consent.
Giving customers access to the liability waiver before they will be asked to sign it (for example, posting it on the business’s website or emailing it to the client in advance) is a good idea, as is actually asking clients, “Did you read the liability waiver?” when they return it after signing.
If a client does not sign an outdoor/adventure company’s liability waiver, he/she should not be allowed to participate in the adventure. Period. Similarly, if a client alters the liability waiver in any way (for example, by crossing out certain content or writing words such as “I do not consent” next to some areas), he/she should not be permitted on the adventure.
Outdoor/adventure companies would also be wise to review the executed liability waiver immediately after the client has returned it to ensure that it has not been altered. Companies may consider initialing the form under the client’s signature to indicate that they have reviewed the waiver and that there have been no alterations.
A client who is intoxicated (by drugs, alcohol or otherwise) is likely incapable of valid consent. It goes without saying that such individuals should not be permitted on the adventure.
Do not represent anything different than the liability waiver.
Outdoor/adventure companies should not tell clients that their liability waivers are a mere formality, that it does not have legal effect, or that it does not apply to specific activities or situations.
Be consistent in your liability waiver practices.
Injured people generally have two years in which to sue. Over that time, it is certainly possible that outdoor/adventure companies may lose track of who administered the liability waiver. That individual may not have an independent recollection of that specific waiver signing, or the individual may have even left the company.
If an outdoor/adventure company’s liability waiver is administered in a routine manner, time and time again, it will be easier to argue in court that the particular liability waiver at issue was similarly administered in a way consistent with best practices and should therefore be found enforceable.
Store the liability waiver in a safe place.
Should something happen and a legal action be contemplated or commenced, an outdoor/adventure company will need the originally executed liability waiver. Sometimes, this can be years after the fact. Companies should therefore carefully consider where and how they will safely store all executed liability waivers, and consider whether it is worth keeping redundant copies (for example, scanned copies stored online).
Key takeaways for outdoor/adventure businesses
While a properly drafted liability waiver is an essential part of an outdoor/adventure company’s risk management strategy, it is but one step in the process. The circumstances in which the liability waiver is presented and executed matter just as much as what the waiver itself says. A signature on a waiver may not be the insurance you think it is unless it was administered in a way consistent with best practices.
Not only are the lawyers in the MLT Aikins outdoor/adventure industry group skilled at drafting liability waivers for the outdoor/adventure industry, we can also advise you on risk management and best practices to give you the best possible chance of protecting your business should an accident happen.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.