From
The KDDK Advantage - November/December 2006
Why Bother With
Waivers?
Contrary to popular belief, a written
release or waiver may serve as a valuable asset in protecting
an athletic or entertainment facility from liability.
A written release or waiver negates a person’s right
to sue an organization for an injury occurring on its
watch or on its premises. Written releases or waivers
are commonly required by facilities when members or visitors
participate in activities sponsored by, or on the premises
of the facility.
For a release to offer adequate protection
to a facility owner, it must be well-drafted and contain
all relevant information. A recent Indiana Court of Appeals
case
re-emphasized the requirements needed to provide this protection:
The release must be knowingly
and willingly made by the visitor or participant. -
The release should contain
clear and unambiguous language.
-
The release should identify
the risks of the activity being undertaken and should
caution
the participants
about these risks.
-
The release should specifically
refer to the negligence of the party seeking
to be released
from liability. [Note: This requirement
is only necessary
when the risk of harm is a hidden danger (i.e. the facility’s
own negligence), but
it should nonetheless be included in the written release or
waiver to ensure adequate protection to the facility
owner.]
An athletic or entertainment facility
or organization will want to cover all of its bases by
including more, rather than less, information in its
written
release or waiver form. It may simply not be enough to insert language
stating that the facility is released from “any damages”
or “any losses” occurring
on its watch or on its premises. Instead, to be on the safe side, the facility
should
make its release clear on what exactly it is seeking protection from. This
can be accomplished by following the guidelines above.
Rebecca Ness Rhymer is an associate
at KDDK practicing in the areas of insurance defense,
litigation and trial
services, family law and adoption, and bankruptcy and
collection services. If you have questions about liability
releases or waivers, contact Rebecca at 812-423-3183
or rrhymer@kddk.com.
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