As I was playing soccer with my Monday night league team, my thoughts shifted from the warm mid-summer breeze and lighthearted enjoyment of a recreational game of footy to the liability waiver I signed (or in this case didn’t sign) when I joined the league. I can’t say exactly when my thoughts shifted, but it was right around the time that the opposing team’s forward stomped his cleats onto the top of my foot while I was tackling for the ball. The resulting sprain led to a trip to the ER, three trips to athletic therapy, crutches, a cane and several ice packs.
It could have been worse. A few years ago, I played on a team full of lawyers who I worked with. In one month, I tore my ACL while another associate tore his Achilles tendon; a senior partner tore his quadriceps. Although we had all signed waivers, the league management were sweating heavily. The fields were in bad shape. The referees weren’t great about enforcing fouls for contact. There wasn’t any provision for emergency medical care. The waivers were worthless and they knew it. I’m sure they sweated right up until the limitations period expired two years later. But we didn’t sue. And there won’t be any litigation this time either. I accepted the risks inherent in the sport and it’s not an issue. However, the things I’ve seen in my practice tell me that there are enough people and strange circumstances out there to make the liability waiver a very important part of a lot of business plans.
The basic presumption is that by acknowledging the risks inherent in a given activity or undertaking, the participant accepts responsibility for any accidents or injuries that may befall them. In many cases this is true. And a good liability waiver is a great risk mitigation strategy. It does require some thinking about the nature of the risks involved though, and it does require the business that exposes customers or clients to risks to take an active role in minimizing those risks to the extent reasonably possible.
If you’re thinking that you can have someone sign a waiver and that you will be completely indemnified of all blame regardless of your subsequent behaviour, any changes in the risk landscape or a host of other factors though, you’re wrong. There are a number of things that can deflate a waiver. Jurisdiction-specific legislation. Issue-specific caselaw (ie you can’t make someone indemnify you for killing them, for example). Misrepresentation. Failure to meet the Standard of Care required. Lots of things.
So if you are involved in a risk-intense business activity, I would highly recommend having your waiver documentation reviewed on a regular basis by counsel who are knowledgeable and familiar with your business practices. And if you, or someone you know, has been injured in an accident, you may be entitled to a LARGE CA$H SETTLEMENT. But you’ll have to call someone else for that, because that’s not our bag.
Scott R. Young