Legal Explainer: Assumption of Risk Waivers
All businesses have some element of risk. However, in our litigious society, any business that invites clients to participate in a potentially risky activity needs to be very careful.
Unfortunately, the injury of your clients (or in the worst-case scenario, death) can be a legal nightmare from which you or your business will never recover. Having your guests sign an Assumption of Risk Waiver/Hold Harmless Agreement is a big part of protecting your business from these types of circumstances.
When writing this particular waiver, you need to be very unambiguous, outlining the risks involved, leaving nothing up to interpretation.
What is Assumption of Risk?
Assumption of Risk is exactly what it sounds like – a complete written statement in a waiver describing all the risks involved in the activity or procedure your guest will be participating in.
By signing off on it, your guest then legally states that they are willing to accept those outlined risks, waiving their right to take legal action against you should they become injured.
However, you definitely should not write a waiver like this without consulting with a lawyer. Any ambiguity in the language can completely ruin your chances of a successful defense, if the worst-case scenario does occur.
The importance of language in an Assumption of Risk Waiver
What began as a fun father-son adventure dive in California ended in tragedy when the father ran out of air underwater. Although the son was successfully resuscitated, he died the following day.
The family sued the company that provided the SCUBA equipment, but both father and son had both signed a waiver that contained an Assumption of Risk clause and exculpatory language.
Though the trial court ruled in favor of the SCUBA provider, when the case was then brought to the California Court of Appeals, they reversed the ruling on the basis that the clause only stated that the family waived the right to sue for injuries sustained during “boat dives and multiple day rentals,” while theirs was only a one-day rental. Such a minor oversight in the language meant the SCUBA provider had to pay damages, and take a major hit to their reputation.
Primary vs Secondary Assumption of Risk
From a legal standpoint, it’s important to know the difference between primary and secondary assumption of risk.
Primary assumption of risk is when someone is injured in an inherently risky activity, but due to no specific fault of you or your business. This is where the Assumption of Risk waiver fully protects your business as these risks are fully outlined and accepted by a participant.
Secondary assumption of risk is when someone accepts a risk, despite knowing there is a very specific risk present outside of your normal operations.
For example – if you run a ski resort and your staff tells a skier that a hill is outside of your property, but they go anyway and injure themselves, the court will have to assess how much blame is placed on both parties. In this example, they might want to look at how well you placed barriers preventing access and how prominent your signage was.
Risk Management and Gross Negligence
Lawsuits against business are predicated on the allegation of negligence – that an action of your staff or lack of proper safety precautions were the cause of the injury.
In the ski resort example above, not providing adequate barriers preventing access to dangerous areas can be considered negligent. Waivers are more likely to be effective against claims of ordinary negligence, which is the failure to take reasonable precautions to protect the safety of your participants.
Here are some examples of ordinary negligence in running an adventure tourism company:
- Providing equipment that is in disrepair
- Injury resulting from a lapse in supervision or improper supervision
- Staff who were involved in first aid treatment had expired certifications
- Not properly blocking access to dangerous or restricted areas
Gross negligence, on the other hand, is when an injury results from “extreme indifference to or disregard for the safety of others.”
These claims, if proven, are more likely to result in successful legal action against your business even if a waiver was signed.
Some examples of gross negligence in adventure tourism include:
- Providing inadequate or misleading training/orientation for an activity
- Failure to perform standard safety checks and procedures for an activity
- Allowing participants to perform an activity without protective gear
- Allowing participants to engage in a dangerous activity without a required certification
- Hiring staff that don’t have legally-mandated certifications for an activity
- Refusal of trained staff to provide first aid when required
A gross negligence claim may also arise due to the mishandling of an incident. One example would be if your staff gave improper first aid despite being certified.
It is critical when running your business to consistently review your risk management practices. This includes regularly assessing safety policies, maintaining equipment, conducting site training and first-aid training for staff, and ensuring all relevant qualifications of your staff are up to date.
How to Write an Assumption of Risk Clause
Before you begin, it is important that you have performed a full risk assessment on your business, and fully outlined in this clause all of the potential risks as any gaps could result in a lawsuit loophole.
The best clauses are simple and direct. This means conveying all the necessary information without using dense legalese or confusing language. The clause will need to note who will be held harmless, and who will be providing the protection.
You’ll also need to describe the category of the services offered to the signee, as well as all the reasons that the signee will hold the contracting party harmless.
Even if your waiver is long, your Assumption of Risk Clause needs to be visible to the signee. It can’t be buried in a longer paragraph or hidden down at the very end of the waiver.
The Importance of Consulting a Lawyer
When you’re writing an Assumption of Risk Clause as part of your overall liability waiver, it’s extremely important to consult a lawyer. A lawyer can ensure that the language you use is legally binding, and the overall waiver itself is enforceable.
Many U.S. states will not uphold waivers that are too broad. This means it’s vital to ensure that your waiver is written in simple language that clearly lays out the information. Anyone who has to sign it will need to understand what they are signing.
WaiverForever Adds Another Layer of Protection
Having signed waivers protects your business. But, having a tool specifically designed to help you stay legally compliant while also streamlining your waiver-signing and storage provides peace of mind.
To save time and make sure you’re fully adhering to your legal safeguards, consider investing in a waiver app like WaiverForever. You will worry less about papers getting lost or misfiled, and focus more on the satisfaction and enjoyment of your customers.
And after all, that’s what’s worth spending time on.
Click here to learn about our online waiver service that allows for easy waiver capture, simple uploading, and completely secure storage for all types of businesses.