A waiver or release is the intentional and voluntary act of relinquishing something, such as a known right to sue a person, educational institution, or organization for an injury. Waivers and releases are commonly used by the sponsor of an event (e.g., a marathon) and schools when competitors, students, faculty, or visitors participate in a private or institution-sponsored activity. The term waiver is sometimes used to refer a document that is signed before any damages actually occur. A release is sometimes used to refer to a document that is executed after an injury has occurred. A waiver can be an effective way for a person, educational institution, or organization to inform students, parents, event participants, and family members of the risks involved in various activities and to shield the person, educational institution, or organization from liability. The best releases explain the risks of a particular activity or program in detail. So, even if all aspects of a release are not upheld in court, you can show that the releasing party was informed about the specific risks and should be responsible for his or her own conduct. Waivers, as described above, often contain express assumption-of-risk language. This type of language:
- Describes the activity;
- States that the signer has full understanding of the nature of the document;
- Knows of the specified risks;
- Voluntarily chooses to assume the risk; and
- Agrees not to hold the institution liable for the consequences of his or her participation in the described activity.
If the participant later is injured and brings a lawsuit, this language permits an organization, school, college, or university to maintain that the participant’s signature shows he or she voluntarily took part in an activity with known risks and, therefore, should not receive damages. When outside entities or organizations use an institution’s facilities (such as a school’s track or cross country course), the institution may try to limit its liability exposure by having participants sign a hold-harmless agreement. This document is a promise by one party not to hold the other responsible for any costs or claims that may result from a loss that results from the subject matter of the agreement.
CAVEAT: Courts go not always uphold waivers and releases. In Quinn v. Mississippi State University, 720 So. 2d 843 (Miss. 1998), the Mississippi Supreme Court rejected a release signed by a 12-year-old attendee at a Mississippi State University baseball camp and the child’s father. The child and his parents sued the institution for injuries the child sustained when he was hit in the mouth with a baseball bat by a coach who was demonstrating how to hit baseballs off a tee. Because the release did not mention an instructor’s acts, the court ruled that it was not clear that the parties contemplated such acts of negligence when they signed it. In Whittington v. Sowela Technical Institute, 438 So. 2d 236 (La. 1983), the Louisiana Court of Appeals upheld a jury verdict against the institute on the grounds that the release was not freely and voluntarily given. A senior nursing student was required to sign the document before participating in a field trip to a hospital. On the way to the hospital, the driver of the 15-passenger van in which she was a passenger lost control and the van turned over, killing her. Among the factors the court considered were that the institute did not offer alternative classes for students who chose not to participate in the field trip, that it required students to travel in a group and did not permit them to use their own vehicles, and that it dictated the terms of the document. Students were required to sign to release it from liability for a reasonably foreseeable danger.
Some courts have upheld releases and waivers. In Sharon v. City of Newton, 769 N.E.2d 738 (Mass. 2002), the Massachusetts Supreme Judicial Court upheld a school district’s release signed by a student and her father to permit her participation in cheerleading activities. The student was injured while participating in cheerleading practice, and the court rejected the lawsuit alleging negligence and the negligent hiring and retention of the cheerleading coach. In reaching its decision, the court noted that the student and her father had ample time to read and understand the release before signing it, that cheerleading activities were not deemed to be compelled nor essential, and that releases were favored as a matter of law in Massachusetts. It stated that to hold releases unenforceable in such circumstances would expose public schools, which offer many extracurricular sports opportunities, to financial costs and risks that would inevitably lead to reductions in those programs. As these examples show, courts vary in their approach to releases depending on the particular facts of each case, the releases effect on other statutes and laws, and the courts’ views of the benefits of releases as a matter of public policy.
Essential to the Public
Courts have often ruled that waivers and similar documents that affect the public interest are invalid. In Kyriazis v. University of West Virginia, 450 S.E.2d 649 (W. Va. 1994), a student at the University of West Virginia who signed a release as a condition for playing in a rugby club sued the institution after being injured during a match. The university argued that the rugby club was an extracurricular activity and not a public or essential service, but the court said that providing recreational activities were part of the university’s educational mission and of its performance of a public service. However, state courts differ in what they deem to be essential.
Courts have rejected agreements when they find that the participants do not enter into the activity, freely, and voluntarily, as was the case in Whittington v. Sowela Technical Institute.
Parties to an Agreement
Many courts will invalidate documents signed on behalf of minors. For example, in Scott v. Pacific West Mountain Resort, 834 P.2d 6 (Wash. 1992), the Washington Supreme Court rejected a release that the mother of a 12-year-old boy had signed, saying it violated public policy and was unenforceable because it barred the child’s own cause of action. The child had been seriously injured at a ski school when he crashed while trying to ski on a slalom race course.
Releases and similar documents are most likely to hold up in court if they use specific, clear, and unambiguous language. Releases for a specific event are more likely to survive legal scrutiny than releases for a more long-term activity. Some courts have rejected documents that don’t explain the nature of the activity, including its difficulty, dangers, location, and other details. Some jurisdictions require use of the word negligence, or similar such words. Courts may also require that the language which describes what is being waived be conspicuous, such as in bold or capital letters.
Relative Bargaining Power
Courts usually examine whether the two parties to an agreement have equal bargaining power. The courts may take into account a number of factors, including the opportunity for the two parties to negotiate. For example, in Kyriazis v. University of West Virginia, supra, the court took into consideration that the university’s counsel prepared the form, but the student did not have the benefit of counsel.
Gross Negligence and Intentional Acts
Courts do not permit institutions to waive their responsibility when they have exercised gross negligence or misconduct that is intentional or criminal in nature. Such an agreement would be deemed to be against public policy because it would encourage dangerous and illegal behavior.
Ticket Stubs and Waivers
Waivers are often found on the backside of ticket stubs for sporting and entertainment events. Most fans do not read these waivers (many are not even aware of the existence of the waiver on the back). Defendants will often raise as a defense to a negligence claim that such language should relieve them from liability. Generally, these waivers are virtually unenforceable since there was no intent on the part of the fan to agree to such terms. Also at issue is the lack of informed consent, and the courts have traditionally refused to impose such waivers on fans as a matter of public policy.
Minors and Waivers
In areas such as Little League sports or even amusement park rides, waivers are often signed by parents of a minor to avoid liability or give up the right to sue in the event of an accident that causes injuries. The law is unclear as to whether parents who sign waivers on behalf of their children will release a potential defendant from liability to the minor. The trend is to enforce such waiver arrangements signed by parents on behalf of a child. However, it is quite possible that a court could refuse to enforce such a waiver, especially for gross negligence or recklessness. A court does have the option of not enforcing a waiver signed by the minor or parent. Such cases should be analyzed on a case-by-case basis, paying close attention to the particular state’s common law interpretations of waivers.
 Id at p. 79
 Id at p. 79