Getting Participant Waivers

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by the Nonprofit Risk Management Center

Waivers and other liability shields can be effective risk management tools, but they must be carefully drafted and used appropriately. Since state courts interpret liability shields and decide whether to uphold them, a nonprofit that uses such documents should be familiar with the standard of scrutiny applied to waivers by its states’ courts. A waiver is a legal and psychological deterrent for the participant to pursue legal actions. If you are considering the use of contractual risk transfer mechanisms such as a participant waiver, consult an experienced attorney for advice on your particular circumstances.

Elements of an Effective Waiver

An effective waiver should be titled properly, such as “Waiver and Release.” In general, it should be easy to read, with a font size of at least 10 pt. font. The language in the document should be clear and understandable, and should not contain any untrue or fraudulent statements. It should specify the risks of the activity and refer to negligence, as many states require a reference to negligence and prohibits release for gross negligence. The waiver also makes it clear that participation in the activity is voluntary and that assumption of risk is only when voluntary.

Specifically, the contract should reference “consideration,” which is an essential element for an enforceable contract. For example, the wavier may read, “In consideration of my participation…” The waiver should list all protected parties and specify other releasing parties, such as heirs, assigns, etc. The release language should be conspicuous, and the signature line is near the release language. The signer assumes risk of participation. The document should also contain a parental signature line if the participant is a minor.