Anyone who has ever rented skates, bought a lift ticket, signed up for a gym membership or used a rec facility, has probably seen a waiver that purports to release the owner or operator from responsibility for any injury or loss that might be suffered. If you are one of these owners or operators, you might be wondering whether these types of waivers can actually protect you from liability. Do they actually work? The short answer is: They can, if they are done right.
Organizations have successfully relied upon signed waivers to prevent an injured customer or participant from successfully suing them. However, there are also court cases in which signed waivers have failed to shield organizations from liability. The law surrounding waivers is complex and the outcome of these court cases is fact-specific. The wording and structure of waivers, the background of the plaintiff, the nature of the activity being undertaken, the circumstances surrounding the signing of the waiver and various other factors have influenced the outcome of these cases.
There is no straightforward formula for ensuring that a waiver will be effective and enforceable in all cases, but steps can be taken to increase the odds. Here are some key principles and best practices to keep in mind:
A waiver only covers what it covers
For a waiver to protect against liability, the wording of its exclusion clause must apply to the specific claim being made in the lawsuit in question. If the plaintiff's allegations fall outside the scope of the waiver, the waiver will not protect against liability. For instance, if a plaintiff alleges that injuries were caused by an organization's negligence, a waiver signed by that plaintiff will only apply if the wording of the waiver excludes, with sufficient clarity, liability for the organization's own negligence. While the relevant case law does not establish a specific, required wording, it is clear that care must taken to ensure that waivers are drafted clearly and specifically enough to capture the various types of risks, losses, claims and allegations that the waiver is intended to protect against.
Waivers are not a one-size-fits all document
Different activities involve different inherent risks and potential sources of liability. To be as effective as possible, a waiver should be customized to reflect this. Utilizing a standard, boilerplate document is usually not the best approach.
Bring attention to the waiver
Usually, when you provide a document to another person for them to sign, you are not required to take any steps to bring onerous terms to their attention or ensure that they read them. While this can be true in the case of waivers, the courts have identified certain exceptions. If an exception is found to apply, the waiver may be ineffective unless the party relying on it is found to have taken reasonable steps to bring the signing party's attention to the waiver. Further, in cases where a loss or incident falls within the scope of Alberta's Occupier's Liability Act, the duty to take reasonable steps to bring a waiver of lability to the attention of the signing party is statutorily confirmed. Although, in a given case, a court might find that there was no requirement to bring a waiver to the signing party's attention, this will be fact-specific and cannot be predicted with certainty in advance. Therefore, to maximize the chances that a waiver will be effective, it is best practice, when developing and administering waivers, to take steps to bring the waiver and its terms to the attention of the person signing.
Here are few tips:
Give enough time to read the waiver: In many cases, courts have considered whether or not the person signing the waiver was given sufficient time to read it. It is a good idea for the person presenting the waiver for signing to identify it as a liability waiver, direct the person to read it and allow enough time for them do so. This is preferable to simply pointing to the signature line and directing them to sign.
Consider making the waiver a separate, standalone document: Courts have identified the length and format of the document as a relevant factor, as well as whether the waiver is a separate document or a portion of a longer agreement. Making the waiver a clearly identified, separate document, if possible, may draw it more clearly to the attention of the person signing.
Use clear headings and warning statements: Clear, bold headings that identify the document as waiver and indicate that it excludes liability can help establish that the signing party was made adequately aware of what he or she was signing. Courts reviewing waivers have also noted the inclusion of prominent statements such as: "Please read carefully before signing."
Emphasize particularly onerous clauses: It is good practice to format the waiver to emphasize and draw particular attention to its most onerous clauses, such as clauses that exclude liability for the organization's own negligence. This can be done in a number of ways including, but not limited to: bolding font, increasing font size, using capital letters, highlighting text with a different colour, and placing key text in a distinct box or section. The more that key, onerous clauses can be emphasized, the better.
This list is not exhaustive, and not all of these tips will apply equally to all organizations and all waivers.
Get legal advice
This article is intended to provide some useful preliminary information on the law of waivers in Alberta, and on the effective development and use of waivers. It does not provide a comprehensive explanation of the law in this area, which is complex and fact-specific. For example, it does not touch on waivers for minors, waivers for activities that are not inherently dangerous, waivers involving third parties or unsigned waivers (such as warning signs and waivers on tickets). These give rise to their own unique legal issues and considerations.
It is a good idea for organizations that use, or are thinking about using, waivers to get legal advice that is tailored to their specific needs and circumstances. Feel free to reach out to me. I would be happy to chat.