Is your organization planning a field trip or camping trip? Perhaps a trip to a museum or amusement park? Does your organization participate in a youth sport program? As a part of your planning process it is a good idea to create a waiver for your participants to help protect your organization from liability. Nonprofit Risk Management Center offers the following tips to consider for careful waiver drafting.
Risk Management Tips:
- Use a proper title—Always use the term “Waiver” or phrase “Waiver and Release of Liability” as the title of your form. Never use a misleading title such as “sign-up sheet.”
- Keep it simple—Limit the purpose and content of the waiver to your request that a parent waive the right to sue for injuries suffered by their child while participating in a program or activity sponsored by your nonprofit. Waiver language buried in a longer document covering a multitude of topics increases the likelihood of disfavor by a reviewing court.
- Be truthful and tell it like it is—Make certain that your waiver contains no fraudulent statements or misrepresentations. For example, don’t indicate that participants may inspect your equipment and facilities if there is no opportunity to do so. Don’t tell parents there is no insurance for the event, if, in fact, there is.
- Clearly describe the specific activity in which the participant will be involved.
- Don’t use one waiver for multiple activities
- Note and describe inherent risks—Include a separate paragraph in the waiver alerting the participant to the inherent risks of the activity. Draft a representative list of inherent risks associated with the specific program or activity covered by the waiver.
- Note the special risks pertinent to the activity, outdoor/indoor location, or type of facility. Remember that your nonprofit is in the best position to describe the terrain, conditions, physical fitness required, etc., as well as the dangers or unpleasant conditions associated with the activity.
- Include an assumption of risk statement that affirms the participant’s voluntary participation. For example: “I acknowledge and accept the inherent and special risks associated with hiking Big Mountain and certify that I am voluntarily participating in the hike on June 10th.”
- Use readable type —While it’s okay to use boldface, underline and italics to highlight key terms, don’t make the mistake of putting important or lengthy sections in ALL CAPS, WHICH ARE HARD TO READ.
- Don’t promise a safe environment or safe experience —Although you should do your best to provide a safe and enjoyable experience for participants, it’s never wise to promise safety. WHY? A reviewing court may regard a promise of safety as an express or implied warranty, or evidence that any harm suffered by a plaintiff participant must have resulted from gross, rather than ordinary negligence.
- Make the waiver section of the document clear—Ensure that the waiver is clearly drafted and applies to injuries arising from inherent risks or from the nonprofit’s ordinary negligence.
- Remember “who” and “what” —Reference which parties seek protection and refer to the negligence of the parties. Some states require that the word “negligence” appear in an enforceable waiver.
Careful waiver drafting is an important part of protecting your organization from liability. Consult with an attorney for questions and review of your waiver.
If you are a Baker, Romero and Associates client, you have access to Nonprofit Risk Management’s Center Portal. We are here to help with your insurance and risk management needs.
*Intended for informational purposes only. This is not be construed as legal advice.