Archive for the ‘Waiver/Release’ Category

Waiver Saves Fitness Center in PA

Divided court highlights potential waiver pitfalls

Melinda Hinkal found out the hard way that it’s important to read before signing that liability waiver. She, like everyone else who applied to join the gym, was required to sign a waiver before she could begin working out in the facility. After joining, Hinkal claimed that too much weight on the equipment she was using caused a neck injury. It was her contention that the trainer advised her to continue working out even after she complained of pain.

The PA State Superior Court decision ruled she could not sue the gym because the signed waiver stipulates that gym members “assume all risks of personal injury.” However, not all the judges agreed with the ruling. A dissenting judge argued that the waiver agreement “contravenes public policy,” which is intended to protect consumers. The dissenting judge also noted that the waiver didn’t clearly stipulate that personal training sessions were covered.

Would your waiver hold up in court?

This case shows that the outcome of any given case clearly depends on the judge’s interpretation. This case also provides a clear example of some of the points I bring up in “Are Waivers/Releases Worth the Paper on Which They’re Written?” Chief among those points is that courts are more likely to rule in favor of a waiver that was custom written for specific activities and that aims to meet the requirements of your state’s laws.

So, what is a well-written waiver/release? Quite simply, nearly every phrase in every sentence must be written to avoid the pitfalls that resulted in actual rulings against waivers. The above-mentioned article lists 10 common waver risks to avoid.

Waivers and risk management

Given the dissenting opinion and the pitfalls mentioned above, it’s logical to assume that a different panel of judges might have ruled in Hinkal’s favor. So, don’t assume you’ll beat the odds if your waiver comes under scrutiny.

We have many other risk management articles pertinent to health clubs and fitness trainers. And we offer best-in-industry fitness instructor insurance and fitness center insurance at up to 38% savings.

Source: Matt Miller. “Woman signed away her right to sue over injury at Gold’s Gym, divided Pa. court rules,” 29 Jan. 2016.

Electronic Signatures on Waiver and Release Forms

Clients ask if they work as well as paper waiver/release forms

Clients often ask if electronic waiver/release forms will be upheld by a court to the same extent as paper waiver/release forms? The concern is that a forged signature may more likely on an electronic release or the language is not conspicuous enough.

The answer is that electronic releases are no longer an issue and courts readily uphold them. To the best of my knowledge, no court has ever invalidated a release merely because it was electronic.

As to the issue of forgery, electronic releases are more reliable than paper releases and have the advantage of authentication to match the signer of the web form either by email address, ISP, URL, IP address, and/or by the name on the credit card used for registration.

Court Cases Upholding Electronic Waiver/Release Agreements

Waiver/Release Should Be Conspicuous on the Web Page

The waiver/release language should not be buried or hidden on some obscure part of the web page or written using small font. We suggest a conspicuous header that is bold, in all caps, and/or underlined. An example would be WAIVER/RELEASE OF LIABILITY AND ASSUMPTION OF RISK AGREEMENT. The body of the release should be in a normal-sized font.

Make Sure the Minor Signs the Electronic Waiver/Release

Parental signatures are only upheld in about 10 states at this time. Therefore, for the other 40 states, it is critical that the minor is informed of the risks of participation and provides his/her consent to be subjected to those risks.

A well-drafted understanding of risk section in a waiver/release along with the accompanying name and signature of the minor may be introduced into evidence for an assumption of risk defense in many states. Therefore, always require the minor to sign the electronic release form. It might not be beneficial in all cases but it certainly won’t hurt.

Since the parent is typically the party that completes the online registration form, there could be some argument as to whether or not the parent signed “I Agree” on behalf of the minor.

To combat this, the waiver/release should include language that the parent agrees to explain all risks to the minor, the minor’s personal responsibilities for adhering to the rules, and to get the minor’s consent to be subjected to the risks. And the parent’s section of the release should state “I have read and understand and agree on behalf of myself and my minor child/ward to be bound by the terms of this agreement.”

This can provide additional protection but you should still require the minor to sign a separate “I Agree” box for the understanding of risk section.

Avoid Using a Paper Waiver/Release to Back Up an Electronic Release

Some organizations have electronic registration which includes a waiver/release form. But they worry that the electronic signature won’t be upheld by a court so they also require a paper waiver/release to be signed. This is entirely unnecessary as electronic releases are no longer an issue and readily upheld by the courts.

Having a back-up waiver/release can cause a novation, which may actually invalidate both releases. Novation is a legal term which means to substitute one contract in the place of another.

The bottom line: avoid a back up waiver/release in all circumstances.

Electronic Waiver/Release Forms Must Still Avoid Normal Pitfalls

Our article Are Waiver/Releases Worth the Paper on Which They Are Written? provides a list of pitfalls that should be avoided within a well-drafted waiver/release.

Of course, a custom waiver/release drafted by an attorney to be sport- and state-specific is always the best course of action. However, we provide the following sample waiver/release agreements that incorporate many of the principles discussed in this article:

Source: James H. Moss, J.D., Recreation Law 

Add-on Helmet Products

Should they be permitted in youth football leagues?

Many youth football teams and leagues are currently using or considering some new products on the market that will modify their existing football helmets with add-on enhancement devices. These include external soft covers such as The Guardian, Shockstrip, or ProCap, internal shock reducers and shock sensors to help to identify concussion candidates. The helmet manufacturers, primarily the big three – Riddell, Rawlings, and Schutt – either don’t recommend the use of these products or have concerns about their use for various reasons.

Many of my youth football insurance clients have asked for my advice on this matter from a risk management perspective. This is a complicated issue with many elements that need to be considered. I can offer my thoughts based on the current information at hand. Please note that this situation is fluid with new developments and statement releases by NOCSAE and governing bodies occurring frequently.

Do add-on devices actually work?

Before getting into the risk management implications, I have to state that I don’t know whether some of these add-on products provide effective concussion protection or not. Each side’s argument  is backed by its own logic and research. The helmet manufacturers state that they are constantly researching new ways to increase concussion protection and have already incorporated all presently proven materials and designs into their existing models. The helmet manufacturers are wary of liability concerns; they could easily be forced into bankruptcy by adverse jury verdicts or not being able to afford liability premiums. As a result, they must follow all protocols and standards closely as regards the law of product liability to preserve their defenses. This requires them to be conservative and risk-adverse about new and unproven ideas and products.

On the other hand, the add-on product manufacturers  are primarily start-ups that are trying to gain market share with innovative new ideas. They are being fueled by the current concussion hysteria  in football and the rush to find a solution to “save the game.” The add-on device manufacturers allege that the big helmet manufacturers are trying to keep them from gaining a foothold by frightening the public as to the safety of their devices and by unduly influencing NOCSAE, The NFL, and other industry associations. See our recent article, “Helmets Preventing Concussions Seen Quashed By NFL.”

The add-on manufacturers and many safety proponents are concerned that the liability roadblocks thrown up by the helmet manufacturers and NOCSAE are hurting the development of player safety. They point out that, from a historical perspective, the independent research and creativity of smaller companies has benefited society with innovative solutions to problems that were thought to be insurmountable, and as a result they should not be stifled. Furthermore, they state that it is the players and parents who should make the decisions about the use of add-on products.

Regardless of which side is correct in this debate (only time and additional research will tell), the following legal and risk management issues are of  importance in a youth football league’s decision about the use of these add-on devices:

  • Voiding the manufacturer’s warranty
  • Voiding NOCSAE certification standard
  • Failure to follow rules or standards of governing or sanctioning body
  • The law of product liability.

Voiding the manufacturer’s warranty

The typical youth football helmet manufacturer’s warranty asserts that the helmet shell and component parts will be free of defects in materials and workmanship for a period ranging from one to three years. Some manufacturers allow the warranty to be extended if the helmet is reconditioned and re-certified to NOCSAE standards every 1 to 2 years. The warranties are subject to a list of voiding factors, such as failure to recondition/ recertify, inserting used replacement liners, use of a face guard or internal or external device not approved by the manufacturer, use of chemicals which may have damaged the shell, excessive drilling, abuse of helmet or unintended use, and removal of the warranty label. Defective products  under the warranty can be returned to the manufacturer for replacement. The warranties disclaim all liability for consequential damage arising from use of the products.

The helmet manufacturers make a big deal out of voiding their warranty as a reason not to use a third party enhancement device.

On the other hand, the add-on manufacturers state that this is not a big deal since the main purpose of the warranty is to replace a broken shell and this rarely happens. Furthermore, some of the add-on product manufacturers offer their own helmet warranty in the event the helmet manufacturer doesn’t honor their own warranty. Another issue is whether the use of an add-on actually voids the manufacturer’s warranty. It depends on the exact wording in the warranty and the nature of the add-on device. It’s almost inconceivable that some add-ons product could damage the helmet shell. One large helmet manufacturer states that they will decide such warranty matters on a case-by-case basis.

It is my opinion that voiding the manufacturer’s warranty is not a big deal for the following reasons:

  1. The financial consequences are not severe because the warranty merely guarantees replacement of the defective helmet part and has nothing to do with liability arising from player injury.
  2. Many add-on product manufacturers provide their own helmet warranty.

Voiding NOCSAE Certification

NOCSAE is a non-profit corporation  formed in 1969 to develop a performance standard for football helmets. The NOCSAE board of directors consists of representatives from associations in the fields of medicine, athletic training, athletic equipment, sporting goods manufacturers, and high schools/colleges. Evidently, the majority of NOCSAE’s operating income comes from sporting goods manufacturers. NOCSAE is conscious of limiting the liability of the manufacturers and promoting the interests of player safety. Their standards are adopted by governing bodies such as NCAA and NFHS.

The NOCSAE football helmet test involves mounting a football helmet (with face mask removed) on a dummy head and dropping it 16 times onto a firm rubber pad from varying heights, contact points, and in various temperatures. Shock measurements are taken to verify that the helmet meets a severity index for concussion tolerance. If it does, the helmet meets the NOCSAE standard. Testing is conducted by the manufacturers prior to the sale of the helmet and afterward by licensed reconditioners. Newly manufactured helmets that pass the test must bear the seal “Meets NOCSAE standards” which must be permanently branded on the outside rear of the helmet. Recertified helmets must bear the NOCSAE seal inside the helmet that reads “This helmet has been RECERTIFIED according to the procedures established to meet the NOCSAE STANDARD.”  It is important to understand that the NOCSAE standard is not a warranty, but simply means that a particular helmet met the standard requirements when it was manufactured or reconditioned.

NOCSAE does not require a helmet to be recertified on a regular basis but recommends that teams/leagues adopt a program of inspection and reconditioning based on a number of factors such as age of players, age of equipment, and usage. NOCSAE does not mandate reconditioning or recertification, but manufacturers may restrict their warranty based on these factors. Any change or modification to the shell or liner from the original manufacturing specifications could alter the performance of the helmet and its performance under the NOCSAE test. However, replacement parts are acceptable if they meet or exceed original manufacturer specifications. The NOCSAE helmet standard does not include the testing of helmets with face masks because they are tested separately. NOCSAE suggests that the original manufacturer be contacted before any materials are applied such as, but not limited to, thinners, paint, wax, solvents, vinyl tape designs, and cleaning agents.

Below is an excerpt from  NOCSAE’S July 16, Press Release:

“The addition of after-market items by anyone that changes or alters the protective system by adding or deleting protective padding to the inside or outside of the helmet, or which changes or alters the geometry of the shell or adds mass to the helmet, whether temporary or permanent, voids the certification of compliance with the NOCSAE standard.”

This ruling likely prompted the Colorado High School Activities Association (CHSAA) to prohibit the use of add-on products during games.

You can also read NOCSAE’s August 7, 2013 Clarification Press Release, which details the helmet manufacturers’ decision on NOCSAE standards being voided.

Pressure from third party manufacturers and safety proponents likely was behind NOCSAE modifying and relaxing it’s original July 16 statement. This new statement  allows the helmet manufacturer to unofficially test the results of its helmet with the add-on device. This statement also makes exceptions for items that are not attached or incorporated (see text below).

Here are some highlights of the August 7, 2013 NOCSAE statement:

The addition of an item(s) to a helmet previously certified without those item(s) creates a new untested model. Whether the add-on product changes the performance or not, the helmet model with the add-on product is no longer “identical in every aspect” to the one originally certified by the manufacturer.

When this happens, the manufacturer which made the original certification has the right, under the NOCSAE standards, to declare its certification void. It also can decide to engage in additional certification testing of the new model and certify the new model with the add-on product, but it is not required to do so.

Companies which make add-on products for football helmets have the right to make their own certification of compliance with the NOCSAE standards on a helmet model, but when that is done, the certification and responsibility for the helmet/third-party product combination would become theirs, (not the helmet manufacturer). That certification would be subject to the same obligations applicable to the original helmet manufacturer regarding certification testing, quality control and quality assurance and licensure with NOCSAE.

Products such as skull caps, headbands, mouth guards, ear inserts or other items that are not attached or incorporated in some way into the helmet are not the types of products that create a new model as defined in the NOCSAE standards and are not items which change the model definition.” (Note: This is not the official position of NOCSAE or any helmet manufacturer but a leading concussion blogger speculates that the exception applies to MC10/Reebok Checklight and Guardian Cap.)

See the April 2013 statement from National Athletic Equipment Reconditioners Association (NAERA) regarding the removal of aftermarket enhancements and related complications during the recertification process:

Based on the latest NOCSAE clarification, the helmet manufacturer has the right to void the original NOCSAE certification for a particular add on product. This being the case, there is legal risk in allowing the use of an add on device on a helmet in a youth football program if an injury and lawsuit results where the helmet manufacturer takes the position that it voided the NOCSAE certification due to the add on  product.

Violation of governing/sanctioning body mandates

Do the use of these add on devices violate the rules of the various governing / sanctioning bodies such as NFHS, American Youth Football, Pop Warner, USA Football?

Most youth football leagues follow the rules of their state version of the NFHS rules and regulations.

The NFHS has not disallowed the use of certain external enhancement devices per their Rules Review Committee Statement, August 2012.  Here is the critical element of their opinion: “In the absence of a clear answer to the “net impact on protection” issue, the decision as to whether to use or not use helmet attachments remains, at the high school level and all other levels, within the discretion of the various teams, coaches, athletes and parents.”

However, as a result of the latest August 7, 2013 NOCSAE clarification, the NFHS may be pressured to reconsider its position and to disallow an add on product should a helmet manufacturer declare that its use voids the original helmet certification.

The NFHS rules can be amended by the various state member associations. For example, the Colorado High School Activities Association (CHSAA) recently prohibited the use of these products during games but not during practice.

It is always safest from a liability perspective to follow the rules of the governing / sanctioning body. Failure to do so will certainly be used against a team or league in a court of law and can be a strong indication of negligence.

Use of add-on products trigger legal defenses for helmet manufacturers

In the event of a serious head or neck injury, the plaintiff’s attorney will likely sue the helmet manufacturer/ distributor; add on product manufacturer / distributor; team / league; individual administrators; coaches, managers, trainers, and referees; and possibly the sanctioning body organization. Each will likely point the finger at the other defendants and will plead all the legal defenses that are available such as the absence of negligence, the other defendants were negligent, assumption of risk, waiver / release, etc.

What does product liability case law say about the legal defenses that are available to helmet manufacturers that may be triggered by the unauthorized use of add on products? Here is a list of such defenses:

  • Improper Use Defense — Helmet was not used in manner intended by helmet manufacturer when plaintiff (injured party) was injured.
  • Product Labeling And Directions Defense – The plaintiff or other responsible parties (parent, team, league, etc.) ignored the written warnings, directions, and risks that were communicated in helmet manufacturer’s materials.
  • Altered Product Defense – The helmet manufacturer is not responsible for plaintiff’s damages if the plaintiff or other party altered the product once it left the helmet manufacturer’s control and furthermore the alterations caused the plaintiff’s injury rather than the original unaltered helmet.

Should add-on products be used due to concussion concerns?

Based on the analysis above, from a legal and risk management perspective, it is safest to follow the recommendations of the helmet manufacturers as regards the use of add on products. If you follow their recommendations, they will be the deepest pocket in the event of a catastrophic head or neck injury in your program. The major helmet manufacturers likely carry a combined General Liability / Excess Liability insurance limit in the range of $10M to $25M. On the other hand, the add on product manufacturers likely carry much lower limits of liability insurance due to their restricted start up budgets.

However, if your sports program is going provide or allow the use of add ons that are declared by the original helmet manufacturer to void the NOCSAE certification, despite the liability risks of doing so, it is recommended that your program carry its own General Liability/Excess Liability policy with combined each occurrence limits of at least $5,000,000 such as the insurance program provided by American Youth Football. In addition, the requirement that players and parents sign an appropriately worded waiver/release agreement that specifically warns of the dangers of violating the manufacturer’s instructions as regards add on products should be considered.  

Additional research may vindicate many of the add on product manufacturers to the point where public demand will force the major helmet manufacturers to accept their products if they are proven to promote safety.

SmartWaiver Offers Online Waiver Solutions

It’s easy and and can be customized

John Sadler Sports Liability releasehas always been a big believer in the importance of waiver/release agreements as well as electronic commerce. In the past, many sports and recreation organizations opted for online registration, but still administered their waiver/release agreements the Minor waiver formold-fashioned way with paper forms. This detracted from the convenience of online registration. Now, a company called SmartWaiver has created an online waiver/release solution that can allow sports organizations to complete the entire registration process, including waiver/release agreements, online. They’ve taken the effort to allow customization of the waiver/release form and to ensure that it’s admissible into evidence. For example, it’s important that minors and their parents sign the waiver/release agreement, and the system has the built-in flexibility to allow this.

SmartWaiver was recently interviewed by our client, Sportplex Operators and Developers Association (SODA), which we encourage you to read.

Are Some Sports Waivers Unfair?

Debating the language and intent

Below is an excerpt out of a sports waiver/release from the Seattle Public School District:

I am aware that track and field is a high risk sport… involving many risks of injury, including brain damage, blindness, paralysis and, of course, death.

The kicker is the following line:

Competing in track and field may result not only in serious injury but a serious impairment of my future abilities…generally to enjoy life. (Emphasis mine)

What is enjoyment of life?

When someone is injured in circumstances where blame is assigned by a civil court, the defendant must pay for the injured party’s medical expenses.  The defendant could also have to pay for any potential future lost wages.  But those injured through negligence face a myriad of other future life cost such as the ability to pursue the pleasurable activities they once enjoyed.

Stan V. Smith, a Chicago-based economist and author of the legal term “generally to enjoy life” is apparently not comfortable with the enjoyment of life provision found in thousands of sports waiver/release forms.

“This is a cover your butt thing,” he said.  “It’s a very blunt statement that is ominous and threatening….  They are shoving it in the parents’ faces and implicitly saying, ‘Crap happens.’”

Smith knows such warnings have a place in school waivers, but would like to see them accompanied by clear statements that districts will work hard to minimize risk by taking precautions and set forth reasonable standards to keep students safe.

Theresa Amato of has seen similar issues with school districts and other youth organizations before.  Contract templates are frequently purchased from legal form sellers, which are then tweaked to suit their needs by the district attorney, according to Amato. The districts are likely pressured by insurance companies to include such sweeping language, she said.

Amato’s concern is that the language in the waivers could prevent the injured parties from filing suits.

In my opinion:

I totally disagree with the statements made by Smith and Amato, who seem to miss the point of a sports waiver/release.  Its purpose is to balance the scales of the justice system, which is tipped in favor of plaintiffs. This is clearly evident by the quantity of frivolous lawsuits and excessive amounts awarded by juries. It was never more apparent than during the liability crunch of the 1980s where volunteers refused to offer their services when affordable General Liability insurance wasn’t available.

Many courts will strike a waiver/release if it’s not specific in terms of the injuries and damages that may occur.  If you try to soften the blow, as recommended by Smith, a court could use such language to invalidate the waiver/release.  Waiver /releases are upheld for the purpose of dismissing a minor’s lawsuit in about 10 states if there was no gross negligence and if the waiver/release was intelligently drafted.  In the other 40 or so states, the waiver/release may be introduced into evidence to trigger an assumption of risk defense that often reduces the amount of settlement by up to 30%.

When States Don’t Enforce Parental Waivers

Why use them?

I read an interesting article that outlines why minor waiver/release agreements should be used even if a particular state’s court system has ruled against their enforceability. The article also includes innovative provisions that should be inserted into the language of the waivers/releases.

A minor is not considered to be a legally competent party to enter into a binding contract such as a waiver/release agreement. Therefore, their enforceability is dependent upon the minor’s parent(s) waiving rights on their behalf.

Below are reasons why minor waiver/release agreements should be used even if a court in a particular state has ruled that the parental waiver is not enforceable:

  • The case law of the state may change.
  • The waiver/release may have a psychological impact to deter litigation.
  • The organization requiring the waiver/release will be no worse off, even if it is not enforceable.
  • The risk warning provision in the waiver/release may provide evidence for an assumption or risk defense.

Special wording that may make the waiver/release stronger:

  • A provision that the governing substantive law will be based on a state where parental waivers are upheld.
  • A parental indemnification agreement where the parents agree to indemnify the sports organization for legal defense and damages that are paid on behalf of the injured minor.

Find out if a waiver/release is worth the paper it’s written on.

Source: Risk & Insurance, Victor Vepauskas, November 2010

Business Liability Waivers Affecting Children

Florida court rule they’re not allowed

Florida’s Supreme Court has ruled that parent cannot execute an injury liability waiver for a minor child when the liability release involves participation in a commercial activity, as opposed to a community or nonprofit activity.According to the court, if pre-injury waivers were allowed for commercial establishments, the incentive to take reasonable precautions to defend the safety of minor children would be eliminated.

Florida is one of about 10 states that currently recognizes a parental waiver/release for purposes of contractual exculpation and lawsuit dismissal upon summary judgment.This case is narrower in scope and does not impact the successful use of waiver/release agreements for minors in non-commercial settings such as private leagues or municipal recreation departments.

Source: Insurance Journal-Southeast Region, January 12, 2009