Module 4

Lecture: Participation Agreements and Waiver and Release Forms

There has long been a debate on whether or not waivers are “worth the paper they are written on.” Yet the use of waiver and release forms has become a common practice used in all kinds of activities. Join a health club, sign a waiver. Sign your child up for soccer, sign a waiver. Volunteer to help the city clean up the neighborhood, sign a waiver. While the value of a liability waiver is still argued in many courts, case law demonstrates that under certain circumstances with properly written waivers, these contracts are being upheld. Waivers are indeed a type of contract and another technique used to transfer risk. In this case, waivers are used to transfer risks from the event sponsor to the participants.

What exactly is a waiver? Before getting into our own discussion about whether or not using them is a good idea, it will help to clarify several related terms: waiver, disclaimer, release, exculpatory agreement, agreement to participate, and assumption of risk.

A waiver is an intentional and voluntary surrender of a known right or privilege, including the right to sue. A disclaimer is a similar term which is a disavowance of responsibility, usually for some future injury to another. Example – I should have put a disclaimer with the module on insurance saying, “Reading this module could cause drowsiness!” An exculpatory agreement can be a contractual or non-contractual agreement involving an acceptance of risk before the injury happens. An example is a sign that warns ball park patrons that they sit in certain sections at their own risk.

Releases are documents entered into after an injury or damage occurs and usually contains language about no future or contingent claims and limits the right to sue. For example, claims against Iowa State University are settled through the state tort claims act. Before sending payment for a claim, we require the claimant sign a release saying they cannot make additional claims or sue.

A participation agreement is a statement that the participant understands the dangers inherent in the activity and the consequences of the risks involved.

An assumption of risk states that if a person knows the consequences of a particular act and voluntarily accepts that risk, he or she is solely responsible for any resulting injury.

Better Than Nothing

Years ago I attended a risk management session on the subject of waivers and release forms. The speaker, a former assistant legal counsel at a major university, gave the following analogy which I have gone on to use many times. He compares having a signed waiver and release form with being naked and having only a fig leaf. While it may not cover everything, it’s better than nothing! It is true that waivers do carry more weight in some states than others. But at a minimum, a good participation agreement, combined with an assumption of risk and the waiver and release from liability, provides evidence that the institution exercised a high degree of due diligence (remember the duty to warn/educate).

Effective Document Criteria

Waivers come in all shapes and sizes, some plain and simple, others full of strings of legalese. In researching this topic, I ran across an article written by Joseph Kimble, professor of legal writing at Thomas M. Cooley Law School (see article in Links). He is evaluating a waiver and release form required by a sponsoring entity for organizations that want to participate in “Clean Sweep” - an activity to pick up litter in various assigned areas of the city. The first sentence of the Waiver and Release contains 160 words! Mr. Kimble’s point is that a waiver and release can be just as effective with minimal legal jargon. Waivers are most effective and valid when:

  • Properly administered
  • Intentions are clearly stated
  • Inherent risks are clearly defined
  • Voluntarily signed

Waivers for Endorsed and Third Party Events

While it is good practice to request copies of waivers used by endorsed and third party events, as an event planner, your level of concern about the language and format used isn’t great. In fact, it really doesn’t matter to you if they have one or not. Your institution is relying on the insurance and indemnification/hold harmless provisions specified in the contract with the third party (and evidenced by a certificate of insurance adding the institution as an additional insured) for protection. The waiver for both endorsed and third party events is between the event sponsor and event participants.

Waivers for Sponsored or Co-Sponsored Events

When the college or university is the sponsor or co-sponsor, then your interest in having a strong waiver is important. The waiver is now between your institution and the participant. In many cases, the waiver is developed collaboratively by risk management and legal services. However, your office may be asked to assist with the development or draft a document for legal counsel review.

Waiver Samples

Your institution may already have a waiver that you use for sponsored or co-sponsored events. If not, we have provided several samples in the Handout section for your review and to assist in developing a document of your own. If you make changes to your existing waiver or adapt one of the sample formats to meet your needs, it is important to have your legal counsel review and approve the document before its implementation. Please note: this is a disclaimer!

A Combo Approach

Many institutions now use a combination approach and develop a single document that includes the participation agreement, the assumption of risk, and the release and waiver from liability form (see Handouts).

The Participation Agreement

Standard components of the Participation Agreement include:

  • The nature of the activity
  • Inherent risks and dangers
  • Behavior expectations of the participant
  • Health condition of the participant
  • Publicity/Image/Voice Permission

However, you will note in the sample, “Cyclone Stampede Rodeo 2008,” there are additional components added that are specific to the activity – the membership requirement, a statement on the Domesticated Animal Activities Act, a transportation disclaimer, and the animal health certificate requirement. The more specific details outlined in the participation agreement, the stronger the document. What is included will vary, depending on the event.

Assumption of Risk, Waiver and Release of Liability

In a combined approach, the assumption of risk statement has been incorporated into the waiver and release of liability.

Emergency Contact and Medical Information

This form is another element that is usually included as part of the Iowa State University document. However, your institution may elect to gather this information in another manner, but we’ve found it useful to gather all pertinent information at one time. This sample Emergency Contact and Medical Information is a standard format. We also have another version that provides much more detailed information (to use for camps for example). Both forms are considered confidential information.

Waiver Forms and Minors

Minors cannot sign contracts, but the participation agreement, in and of itself, is not a contract. Minors can sign that they have read and understand and agree to this section of information. It is also important to have the parent/guardian acknowledge with their signature that they also have read and understand the information, even if they are not the actual participant. This is often referred to as informed consent. In addition, there may be situations when information might be included that is primarily directed to the parent/guardian.

Since a minor may not enter into a contract, a minor cannot sign away the right to sue (the language in the waiver and release of liability). Parents or guardians can only sign away rights he or she has as a parent or guardian to sue for expenses and damages incurred on behalf of injury or death to a child.

Record Retention

Participation Agreements, Assumption of Risk, and Waiver and Release of Liability forms (or whatever format your institution elects to use) need to be retained according to your college or university’s record retention policy.

I’m A Believer

In 1997, members of the Iowa State University Solar Car Team were involved in an auto accident outside of Topeka, Kansas. The team was traveling in a 15-passenger van and pulling a trailer. Several students were injured, two seriously. The van was being driven by an Iowa State University student. Those facts alone should make a risk manager cringe!

Fortunately, the two injured students recovered fully; however, one individual filed a lawsuit against the university and the driver of the van. The case was decided in a summary judgment (a court judgment based on the judge's conclusion that the litigation involves only a question of law, with no associated questions of fact). This decision was based on the waiver and release form signed by each team member stating that they “voluntarily” elected to participate in the event.

That was a long time ago, and as a risk management department and as a university, we’ve learned a great deal. You might be surprised to learn that we still use 15-passenger vans, and they can be driven by members of student organizations. However, we have implemented very strong policies and procedures before we allow this to occur. If you are interested, check the link to our Student Organization Travel Policy and System. We also have a much stronger document we continue to believe will hold up in Iowa courts.

Next up…Module 5: Policies, Permits and Licenses