40 F I T N E S S M A N A G E M E N T • J U N E 2 0 0 8 w w w . f i t n e s s m a n a g e m e n t . c o m

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 ofa 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 voluntarilyby 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 poorlywritten 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 anyquestion that is answered “no,” or whenyou are unsure of the answer. Total yourpoints for each section and then for theentire evaluation.

Liability waiver evaluation questionsPhysical characteristics of the agreement

1. Is your waiver a separate agreement ofone to three pages? (3 points if the agreement

serves 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: 32. Does your agreement have a descriptive

title 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: 33. 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: 34. Is the agreement print large enough to

be 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: 25. Is the agreement written in language

that 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: 36. 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 ifonly one of these criteria is met)

Maximum possible points: 2Maximum possible points in section: 16

Assumption of Risk section7. Is there a distinct Assumption of Risk

section relating to inherent risks of theactivity that is clearly separated from theother parts (e.g., waiver of negligence) ofthe agreement? (4 points if a distinct sec-tion with a subhead exists; 3 points if nosubhead is used)

Maximum possible points: 48. Does this section describe the nature

of 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: 39. Does this section list some inherent risks

of the activity, including common minor

Just because awaiver is written

by an attorneydoes not mean it

will be effective.

w w w . f i t n e s s m a n a g e m e n t . c o m F I T N E S S M A N A G E M E N T • J U N E 2 0 0 8 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: 310. Does the Assumption of Risk section list

the 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-sequences are listed; 2 points if two areincluded)

Maximum possible points: 311. Do your lists of inherent risks and their

consequences contain phrases such as “Someof the risks are” or “includes, but not limitedto”? (3 points if such language is included)

Maximum possible points: 312. Does this section conclude with an

affirmation by the signer that he or she 1)knows the inherent risks of the activity, 2)understands those risks, 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: 3Maximum possible points in section: 19

Waiver of Negligence section13. Is there a distinct section that

includes a waiver of liability in the eventof provider negligence? This must be clearlyseparated from the other parts of the agree-ment. (4 points if a distinct section exists)

Maximum possible points: 414. Does the exculpatory language

include 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: 316. Does the exculpatory language include

the word “negligence”? (4 points for thephrase “ordinary negligence of theprovider”; 2 points if the word “neg-ligence” is included)

Maximum possible points: 417. Does the exculpatory

language state that therelease 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: 318. Does the exculpatory

language list the partiesthat are intended to be pro-tected by the agreement(e.g., corporate entity[by name], management,employees, volunteers,agents, sponsors,independent con-t ractors , insur-a n c e c a r r i e ra n d e q u i p -ment sup-pliers)? (3

points if five or more of these are listed;2 points if three or four are listed)

Maximum possible points: 319. Is the language of this section broad

enough 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: 320. Does the agreement include language

that 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: 3Maximum possible points in section: 26

Indemnification section21. 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: 322. Does the language include phrases such

as “agrees to indemnify,” “reimburse,” “defend,”“hold harmless,” “save harmless”? (3 points iffour or more of these five terms are used; 2points if three are used)

Maximum possible points: 323. Does the language specifically include

legal costs, attorney fees, court costs and inves-tigative costs? (3 points if at least three of thesefour are named)

Maximum possible points: 324. Does the indemnity section provide

that 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: 3Maximum possible points in section: 12

Other legal considerations25. 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: 226. Does the agreement include language

specifying the venue, jurisdiction andapplicable state law? (2 points if two or

more are included)Maximum possible points: 227. Does the agreement include a covenant

not to sue in the event of injury or loss? (2points if included)

Maximum possible points: 228. Does the agreement include language by

which the signer agrees to submit any claimsto binding arbitration? (2 points if included)

Maximum possible points: 229. 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: 2Maximum possible points in section: 10

Health and safety affirmations30. Does the agreement have affirmations

regarding 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: 231. Does the agreement contain an

authorization 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: 232. Does the release contain an agreement

to 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 selfor others)? (2 points if two or more of theseare addressed)

Maximum possible points: 2Maximum possible points in section: 6

Concluding statement33. Does the agreement conclude with a

statement in which the signer affirms havingread and understood the agreement? (2 pointsif both are addressed)

Maximum possible points: 234. Does the concluding statement include

an affirmation that the signer understandsthat he or she is relinquishing substantiallegal rights, including the right of financialrecovery for injury, whether the injuryresults 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 ofprovider are addressed; 1 point if one isaddressed)

Maximum possible points: 235. Does the concluding statement

include 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 ordinarynegligence of the provider? (3 points if vol-untary participation, voluntary signing andintent are addressed; 2 points if two areaddressed)

Maximum possible points: 336. Does the signature immediately follow

the concluding statement? (2 points if it does)Maximum possible points: 237. Does the signature area include space for

the 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: 2Maximum possible points in section: 11Total possible points for all sections: 100

Waivers making the gradeYou might assume that the next logical

step is to assign a grade to your score, justas in a class. In this case, however, such aprocedure would be inappropriate, as well

42 F I T N E S S M A N A G E M E N T • J U N E 2 0 0 8 w w w . f i t n e s s m a n a g e m e n t . c o m

Is there a distinct sectionin your release

that includes a waiver of liability in

the event of provider

negligence?

as misleading, because a waiver might scorea 95, but be missing one or two points thatmight be considered crucial by a court inyour particular state. The total pointsearned simply indicate how many of thelisted criteria are met — but the importanceof each criterion varies from state to state.What you can say is that the higher thescore earned, the more complete the waiveris, and the broader the protection gained(legally and financially).

This evaluation form was developed froma study of state statutes and from court rul-ings in more than 900 waiver cases through-out the U.S. It includes the criteria that seemto be most important when a waiver is chal-lenged. A score of 90 to 100 would indicatea good, broad waiver that encompasses manyavenues of protection. However, even a waiverscoring 100 might not be enforced by a par-ticular court or in a particular state, since thatcourt or state might require a criterion thatis not addressed in this evaluation form orin your waiver.

If the waiver receives a score in the 70 to90 range, it is probably an above-averagewaiver. Most waivers, including mostwaivers that are enforced, do not meet all ofthe criteria listed on this evaluation form;however, the more criteria met, the betterthe odds that the waiver will be upheld ina court of law.

It is important to remember that thereis no perfect formula for a perfect waiver.The requirements vary somewhat from stateto state. In some states, the public policyfavors waivers and the courts are quitelenient in enforcing them — often enforc-ing what would be considered a poor waiverthat would not be enforced in a strict state.In other states, the courts do not favorwaivers and have stringent requirements forenforcement. It is not unusual for a well-written waiver in a strict state such as Indi-ana, New York or Pennsylvania to fail whenchallenged in court because of one missingcriterion or an ambiguously worded phrase.On the other hand, it is not uncommon fora brief, poorly written waiver to be enforcedin a lenient state such as Georgia, Tennesseeor Ohio.

Since there is no foolproof waiver, youmight ask, “Why bother?” The answer issimple. A waiver can protect an individual orbusiness from liability for negligence, and

that can mean the difference in a victory incourt (or having the case dismissed prior totrial) and a $2 million judgment. Since awaiver can provide low-cost liability protec-

tion for an individual or business, doesn’t itmake sense to develop and use the bestwaiver possible in order to enhance the like-lihood of that protection?

RecommendationsNo business should operate without three

risk-management tools: 1) liability insurance,2) a good liability waiver and 3) an ongoingrisk-management program.

Learn as much as you can about liabilitywaivers. Attend sessions on waivers and riskmanagement at professional conferences,read articles and talk with experts in the area.Do not depend solely on the criteria sug-gested in this article. Of necessity, thesewaiver evaluation questions include onlysome of the criteria used in evaluatingwaivers. A resource that includes much moreinformation on waivers is a copy of Waivers& Releases of Liability, Sixth Edition (byDoyice J. Cotten).

Always employ the help of a competentattorney in your state — preferably one whohas experience with both waivers and yourtype of business. You may take one of twoapproaches: 1) Learn all you can about

waivers and then write your own waiverusing this evaluation form and Waivers &Releases of Liability as a guide. Then, haveyour attorney examine it and make any mod-ifications appropriate to your state. This isthe most economical approach, because itinvolves less billable time by the attorney. 2)Have your attorney write a waiver for yourbusiness. Then, use this evaluation form andWaivers & Releases of Liability to evaluate thewaiver. If the waiver seems to be missingsome of the criteria presented in this article,do not be afraid to question your attorneyabout it — you are paying good money forit, and you want the protection for whichyou are paying. Remember, just because awaiver is written by an attorney does notmean it will be effective. This may be one ofthe few they have written, and the odds aregood that they are not very familiar withwaiver case law.

Make sure you and your staff administerthe waiver in a fair way, allowing the signertime to read, explaining the agreement,answering questions and not discountingthe importance of the agreement. Educateyour staff on how to administer it properly.Develop a system to retain the agreements,to store the agreements in a safe place andto be able to easily retrieve the agreementswhen they are needed. Finally, review thewaiver periodically — particularly aschanges occur in your facility or programof activities. FM

DR. DOYICE J. COTTEN is professor emeritus in sportmanagement at Georgia Southern University, andhas a consulting business, Sport Risk Consulting.He is the coauthor of Waivers and Releases ofLiability (sixth edition), which is a complete andup-to-date source of 1) state waiver laws, 2) rulingsregarding waivers for adults and minors, 3) guide-lines on how to write waivers (including examples)and 4) a full explanation (and examples) of a Par-ticipant Agreement. The book is available from theauthor (djcotten@gmail.com, phone: 912 764-4848); at www.lulu.com or from IHRSA (in PDF only).

w w w . f i t n e s s m a n a g e m e n t . c o m F I T N E S S M A N A G E M E N T • J U N E 2 0 0 8 43

Get More Information Online!If you found this article useful, you can read more about this topic on Fitness Management’s website in its Arti-

cles Archive at www.fitnessmanagement.com/articles/. Below is a list of related articles that you can find online:1. 2007 Year-End Review: Waiver Law. By Jeffrey C. Long (December 2007). In the category “Liability & Insurance.”2. A Friendly Waiver? By Doyice J. Cotten (February 2006). In the category “Liability & Insurance.”3. Someone Was Injured! Am I Liable? By Doyice J. Cotten (July 2004). In the category “Liability & Insurance.”

A well-writtenwaiver, signed

voluntarily by an adult

participant, will,under certaincircumstances,

protect a serviceprovider fromliability for

negligence in atleast 45 states.