But too many organizations don’t revisit these agreements,potentially leaving them exposed if the waivers haven’t been updated to account for new activities or local and state law changes. A waiver that was effective several years ago may not adequately protect an operation today.
The risks can be significant if a customer is injured during an activity the waiver doesn’t cover or if the language conflicts with laws enacted after the waiver was created.
Your business changes. Your waiver should too.
One of the biggest reasons to revisit waiver language regularly is that operations evolve. Many facilities routinely add activities,training programs, attractions or equipment.
A fitness center may add high-intensity interval training classes. An adventure company may introduce zip lines, off-road vehicles or watercraft. A youth camp may begin offering archery, ropes courses or mountain biking.
Each activity introduces risks that may not be addressed in an existing waiver. If a participant is injured during an activity that was not considered when the waiver was drafted, the business may find itself relying on outdated language in court.
Major operational changes also warrant a review. A relocation, ownership change or expansion can create new liability exposures.
Laws and court decisions don’t standstill
Even if your operations remain unchanged, the legal environment rarely does.
State legislatures regularly update laws affecting recreation, fitness and consumer businesses. Changes may seem minor on the surface, such as revisions to cancellation requirements, disclosure rules,bonding thresholds or consumer-protection statutes. Court decisions can also reshape how judges interpret and enforce waivers.
A document that complied with applicable law several years ago may no longer meet current standards. Courts often scrutinize waiver language, and vague, outdated or poorly structured agreements can be challenged during litigation.
Industry-specific court rulings may also alter what risks must be disclosed, how assumption-of-risk language should be presented or what language is necessary to ensure participants understand what they are signing.
What you can do
If you require participants and customers to sign waivers, consider the following best practices:
- Ensure your waivers clearly describe the inherent risks associated with each activity and use language that is easy for participants to understand.
- Review waivers periodically to ensure they reflect current operations and legal requirements. Update waivers whenever activities, equipment or services are introduced.
- Update waivers when local or state laws that affect your liability take effect.
- Have legal counsel perform a comprehensive annual audit.
- Ensure parents or legal guardians sign for minors.
- Review digital waiver platforms and record-retention procedures to ensure signed documents can be easily retrieved if a claim arises.
Keeping track of laws and court decisions that may affect your liability can be difficult, particularly for smaller organizations.
Organizations may also consider joining an industry trade association that monitors regulatory developments and emerging legal trends. Such organizations may help alert members to changes that may require updates to contracts, participant agreements and risk-management practices.
