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Liability Waiver Article

Liability Waiver Article

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Published by zoroaster
Fitness Management Magazine June 2008 exerpt.
Fitness Management Magazine June 2008 exerpt.

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Published by: zoroaster on Jun 08, 2008
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40
FITNESS MANAGEMENT 
JUNE 2008www.fitnessmanagement.com
 A LIABILITY WAIVER
(often referred to asa “release”) is a contract between the serv-ice provider (individual professional or fit-ness business) and the participant, signedprior to participation, by which the partici-pant agrees to excuse or absolve the providerof any fault or liability for injuries resultingfrom the inherent risks of the activity andthe ordinary negligence of the serviceprovider, its employees or its agents. Mostfitness professionals are familiar withwaivers, and understand that they can pro-vide protection from liability. Many, how-ever, do not understand the requirements of a good waiver or the limitations of waivers.And, many fitness professionals don’t real-ize how costly a lawsuit can be if their waiverdoesn’t hold up in a court of law.A well-written waiver, signed voluntarily by an adult participant, will, under certaincircumstances, protect a service providerfrom liability for negligence in at least 45states. In fact, a number of states nowenforce waivers signed by a parent onbehalf of a minor participant. On the otherhand, a waiver will not always protect theprovider; often courts hold that a waiver isnot enforceable and the provider muststand trial for negligence. A waiver can failfor many reasons, but one of the most fre-quent causes is that the waiver is poorly written or is not sufficiently broad andencompassing. Fortunately, providers cantake steps to reduce the likelihood of thistype of waiver failure.Following is an evaluation form that youcan use to evaluate a waiver. First, get acopy of the waiver in use or being consid-ered. Then, answer the following questionshonestly and realistically — fooling your-self can be very expensive! If the answer is“yes” to the question, record the specifiednumber of points. Record a zero for any question that is answered “no,” or when you are unsure of the answer. Total yourpoints for each section and then for theentire evaluation.
Liability waiver evaluation questions
Physical characteristics of the agreement
1. Is your waiver a separate agreement of one to three pages? (3 points if the agreementserves only for liability protection — no appli-cation, registration, sign-up or membershipfunction — and is no more than three pages;1 point if it is one to three pages, but serves adual function)
Maximum possible points: 3
2. Does your agreement have a descriptivetitle that includes one or more of thesephrases: “Waiver of Liability,” “Release of Lia-bility,” “Assumption of Risk,” or “Indemnifica-tion” or “Indemnity”? (3 points; 0 points if thetitle includes “Sign-up Sheet,” “Registration,”“Application,” “Membership Contract” or“Entry Blank”)
Maximum possible points: 3
3. Is the exculpatory language conspicuous?(3 points if such language is emphasized by theuse of underline, bold, all upper-case letters,italics or color)
Maximum possible points: 3
4. Is the agreement print large enough tobe easily read by the signer? (2 points if theprint is 10-points or larger and the exculpa-tory language is no smaller than the remain-der of the agreement)
Maximum possible points: 2 
5. Is the agreement written in languagethat should be easily understood by theintended reader? (3 points if the languagedoes not contain a lot of “legalese.” It shouldconsist primarily of everyday, common lan-guage, with an explanation for unfamiliarlegal terms)
Maximum possible points: 3
6. Is the agreement presented in an easily readable format? (2 points if there are bothsubheads before each section of the agreementand paragraphs are separated by a space; 1 if only one of these criteria is met)
Maximum possible points: 2 
Maximum possible points in section: 16 
Assumption of Risk section
7. Is there a distinct Assumption of Risksection relating to inherent risks of theactivity that is clearly separated from theother parts (e.g., waiver of negligence) of the agreement? (4 points if a distinct sec-tion with a subhead exists; 3 points if nosubhead is used)
Maximum possible points: 4 
8. Does this section describe the natureof the activity in terms of how vigorous itis, fitness level required and the unpleas-ant aspects of the activity? (3 points if allthree of these are included; 2 points if twoare included)
Maximum possible points: 3
9. Does this section list some inherent risksof the activity, including common minor
Just because awaiver is writtenby an attorneydoes not mean itwill be effective.
 
www.fitnessmanagement.com
FITNESS MANAGEMENT 
• JUNE 2008
41
events, some possible serious events and pos-sible catastrophic events that could occur? (3points if all three types of events are listed; 2points if two are included)
Maximum possible points: 3
10. Does the Assumption of Risk section listthe possible consequences of the inherent risks(e.g., minor: scrapes or bruises; serious: brokenbones or concussion; or catastrophic: death orparalysis)? (3 points if all three types of con-sequencesarelisted;2pointsiftwoareincluded)
Maximum possible points: 3
11. Do your lists of inherent risks and theirconsequences contain phrases such as “Someof the risks are” or “includes, but not limitedto”? (3 points if such language is included)
Maximum possible points: 3
12. Does this section conclude with anaffirmation by the signer that he or she 1)knows the inherent risks of the activity, 2)understandsthoserisks,3)appreciatesthose risks and 4) agrees to assume respon-sibility for those risks? (3 points if all fourof these are included; 2 points if two orthree are included)
Maximum possible points: 3
Maximum possible points in section: 19 
Waiver of Negligence section
13.Isthereadistinctsectionthatincludes a waiver of liability in the eventof provider negligence? This must be clearly separated from the other parts of the agree-ment. (4 points if a distinct section exists)
Maximum possible points: 4 
14. Does the exculpatory languageinclude the phrase “In considerationof”? (3 points if the phrase, or simi-lar, is included)
Maximum possible points: 3
15. Does the exculpatory language includethe phrase “I hereby release … from any andall claims”? (3 points if the phrase, or similar,is included)
Maximum possible points: 3
16. Does the exculpatory language includethe word “negligence”? (4 points for thephraseordinarynegligenceoftheprovider”; 2 points if the word “neg-ligence” is included)
Maximum possible points: 4 
17. Does the exculpatory languagestatethattherelease is on behalf of thesigner,spouse,heirs,administrators and assigns?(3 points if all five partiesare listed; 2 points if threeor four are listed)
Maximum possible points: 3
18. Does the exculpatory languagelistthepartiesthatareintendedtobepro-tectedbytheagreement(e.g.,corporateentit[by name], management,employees,volunteers,agents,sponsors,independent con-tractors, insur-ancecarrierandequip-mentsup-pliers)?(3
 
points if five or more of these are listed;2 points if three or four are listed)
Maximum possible points: 3
19. Is the language of this section broadenough to include all phases of participation,warm-ups, use of equipment, use of facility (including shower, locker room, sidewalksand parking lot), instruction and supervi-sion? (3 points for addressing at least threeof these items)
Maximum possible points: 3
20. Does the agreement include languagethat defines the duration of the agreement(e.g., “which may occur in present or futureparticipation,” “for the duration of theevent,” “for the duration of membership,”“during this or all subsequent participa-tion”)? (3 points if an indication of dura-tion is included)
Maximum possible points: 3
Maximum possible points in section: 26 
Indemnification section
21. Is there a distinct indemnification sec-tion that is clearly separated from the otherparts of the agreement? (3 points if a distinctsection exists)
Maximum possible points: 3
22. Does the language include phrases suchas “agrees to indemnify,” “reimburse,” “defend,”“hold harmless,” “save harmless”? (3 points if four or more of these five terms are used; 2points if three are used)
Maximum possible points: 3
23. Does the language specifically includelegal costs, attorney fees, court costs and inves-tigative costs? (3 points if at least three of thesefour are named)
Maximum possible points: 3
24. Does the indemnity section providethat the signer indemnify against 1) claimsmade by the participant, parent or othersarising out of an injury to the participant,and 2) claims of co-participants, rescuersand others arising from the conduct of theparticipant during participation? (3 pointsif both are addressed; 2 points if only oneis addressed)
Maximum possible points: 3
Maximum possible points in section: 12 
Other legal considerations
25. Does the agreement include a severabil-ity clause stating that if any part of the agree-ment is deemed to be void, this will have noeffect on the remainder of the agreement? (2points if included)
Maximum possible points: 2 
26. Does the agreement include languagespecifying the venue, jurisdiction andapplicable state law? (2 points if two ormore are included)
Maximum possible points: 2 
27. Does the agreement include a covenantnot to sue in the event of injury or loss? (2points if included)
Maximum possible points: 2 
28. Does the agreement include language by which the signer agrees to submit any claimsto binding arbitration? (2 points if included)
Maximum possible points: 2 
29. Does the agreement include an integra-tion clause by which the signer affirms that theagreement supersedes any and all previous oralor written promises or agreements? (2 pointsif included)
Maximum possible points: 2 
Maximum possible points in section: 10 
Health and safety affirmations
30. Does the agreement have affirmationsregarding health status (e.g., affirms no healthproblems that preclude participation; affirmsno asthma, diabetes, epilepsy or heart prob-lems; affirms he or she has skill and fitness levelto participate safely)? (2 points if two or moreof these are addressed)
Maximum possible points: 2 
31. Does the agreement contain anauthorization for emergency medical care(e.g., grants permission for first aid, CPR andAEDs; authorizes emergency transport;authorizes sharing medical information withmedical personnel; assumes all costsinvolved)? (2 points if three or more of theseare addressed)
Maximum possible points: 2 
32. Does the release contain an agreementto follow all safety rules and instructions(e.g., agrees to wear required safety equip-ment; agrees to follow safety rules of theactivity, management and instructor; agreesto inform management or instructor of con-duct or a condition that might endanger self or others)? (2 points if two or more of theseare addressed)
Maximum possible points: 2 
Maximum possible points in section: 6 
Concluding statement
33. Does the agreement conclude with astatement in which the signer affirms havingread and understood the agreement? (2 pointsif both are addressed)
Maximum possible points: 2 
34. Does the concluding statement includean affirmation that the signer understandsthat he or she is relinquishing substantiallegal rights, including the right of financialrecovery for injury, whether the injury results from the inherent risks of the activ-ity or from the ordinary negligence of theprovider? (2 points if right of recovery,inherent risks and ordinary negligence of provider are addressed; 1 point if one isaddressed)
Maximum possible points: 2 
35. Does the concluding statementinclude an affirmation that the signer is vol-untarily participating in the activity, and isvoluntarily signing the agreement with thefull intent of releasing the provider of lia-bility for injury or loss due to the inherentrisks of the activity or due to the ordinary negligence of the provider? (3 points if vol-untary participation, voluntary signing andintent are addressed; 2 points if two areaddressed)
Maximum possible points: 3
36. Does the signature immediately followthe concluding statement? (2 points if it does)
Maximum possible points: 2 
37. Does the signature area include space forthe signature, the printed name of the partic-ipant, the date, and the name and phonenumber of an emergency contact person? (2points if two of the three are included)
Maximum possible points: 2 
Maximum possible points in section: 11Total possible points for all sections: 100 
Waivers making the grade
You might assume that the next logicalstep is to assign a grade to your score, justas in a class. In this case, however, such aprocedure would be inappropriate, as well
42
FITNESS MANAGEMENT 
JUNE 2008www.fitnessmanagement.com
Is there adistinct sectionin your releasethat includesa waiver ofliability inthe event ofprovidernegligence?

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Tay McCoy added this note
Very helpful article.I am in the process of establishing my own dance school and needed tips on a good Waiver of Liability. This was just the right amount of information to send me in the right direction for drafting a protection policy.
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