Last week I discussed using Informed Consent Forms (in the context of fitness and health activities) to tell the participant that they are assuming all the inherent risks of the activity. The point of this disclosure is that the participant has been forewarned of the dangers and gives the goods/services provider a legal defense, known as assumption-of-the-risk, against the participant should they become injured, incapacitated, or even killed (in those instances where death occurs people on behalf of the deceased bring wrongful death suits).
Today, I will discuss another form, Waiver Forms, which is usually found in the company of Informed Consent Forms, so I will continue using the health and fitness theme from last week for today’s Draw the Law post.
So What Makes a Waiver Different from Informed Consent?
Informed Consent provides a defense against injury due to inherent risks of the sport or activity whereas a Waiver Form is used to protect against claims of negligence. The main feature is that in a waiver there is an exculpatory clause. This special clause “waives” a person’s right to sue. So in the fitness context, if a trainer or club employee acted negligently and a client or customer got injured, if they signed the waiver, that injured participant would be unable to sue.
Informed consent is all about the activity and the risks that come with it – no one is at fault for these risks; a waiver is concerned with negligent acts or omissions like an instructor not aiding a participant when they should.
Is there Magic Language?
While, there are no exact words, the specific language that you will always see to referring to a waiver is “any negligent act or omission”. The reason being is that negligence claims can arise from actions (also known as a commission) or inaction/failure to action (referred to as an omission).
What is the Difference between Negligence and Inherent Risks?
Inherent Risks – are those injuries that are a part of the activity, such as if you are taking a Turbo Kickboxing it would be clear that you might suffer injuries typical from jumping and kicking, like hurt knees or ankles, these types of injuries are not any person’s fault.
Negligence – is the failure to act, where a reasonable person would have acted under the same conditions and situation, thus in a class of Turbo Kickboxing it would be the instructor giving improper instructions or advice or possibly failing to render first aid if a participant got injured.
Does a Waiver Require Anything Special?
While this is simplified, as it is a sketch, you want to indicate that the person: (1) is signing a waiver; (2) you want to definitely ID the parties who are signing this agreement; (3) the biggest part is the waiver language should stand out, it must be conspicuous to the reader; and (4) the participant should acknowledge and sign that they are waiving their right to sue under this agreement.
Yes, more often than not, many states require such an agreement to have that exculpatory clause in conspicuous font and formatting. Basically, it is to help the average person notice that this is special language and that they need to read it. Many times clubs will put a waiver, hidden amongst a larger set of documents or buried in a membership form. This tend to be problematic as many jurisdictions may invalidate this type of agreement versus that of a separate document. Why? Public policy is that we would like to give fair warning to people that they are giving up the right to sue in case they get injured due to the negligence done by a club or fitness trainer, and allowing businesses to hide such clauses in giant boilerplate documents would be unfair.
These documents tend to be highly contested, and the risk of a court invalidating them is definitely there due to errors in drafting. In addition, certain states do not even recognize these as a valid contract. Therefore, it is best to seek out legal advice from an expert to have something specifically drafted for the activity that you would like to prevent clients or customers from suing you with a negligence claim.
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*Disclaimer: This post discusses general legal issues, but does not constitute legal advice in any respect. No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction. Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.