It is critical to get a release of liability form (also called a waiver) from your customers for several reasons. One is to protect your company and your employees from liability. The form is called a release because participants who sign it are releasing your company from liability for injury and damage they may encounter during the covered activities. A well-crafted and signed release of liability form can help protect your company against a negligence claim from one of your customers. (Negligence is the failure to use reasonable care that results in injury or damage to a person to whom you owe a duty of care.) If you are ever sued or threatened with a suit by a customer who signed a liability waiver, you can use the waiver to assert a contractual defense to liability – in other words, the customer has entered into a contract with you not to hold you liable for any claimed negligence. A well-drafted release of liability form may also help you demonstrate that your customer knew about and assumed the risks inherent in the activity. That offers your company another layer of protection against liability.
Yes, in fact, another reason for a release of liability form is to protect your customers. A well-drafted release educates potential participants about what risks they might face as part of the covered activities, and if applicable, what kind of skills they need to participate safely. The participants can use that information to decide whether the activities are right for them. Many will decide to go forward, knowing what is involved; a few might not.
Each adult participant should sign his or her own waiver. Courts are more likely to enforce a waiver that was signed by the adult participant, rather than another on the participant's behalf (such as a group leader).
Waiver law is based on state law, which can vary greatly. So can the way state courts interpret waivers. Courts are more likely to uphold liability waivers that are well-drafted to meet certain requirements. Courts look at things such as whether the waiver was clear, unambiguous and explicit (good); whether the injury resulted from risks identified in the waiver (good); whether the waiver was signed voluntarily (good); and whether the waiver violates public policy or state laws (bad). Other characteristics of a good release of liability form are: it is a standalone document (instead of language crammed into a larger contract); it has large and prominent print; and it was signed by the participant rather than by someone else on the participant's behalf (such as a group leader). It is important to remember that liability waivers release only negligent acts and omissions – they do not release your company from liability for deliberate wrong-doing or gross (really bad) negligence. Note that a few states do not allow liability for negligent acts to be waived.
There are many reasons to choose an electronic signature solution over paper-and-ink forms for your release of liability form. Maybe one of the best reasons is that it gets the waiver in front of your customer at the earliest possible time – when he or she can still comfortably decide whether to participate. Your customer will have an opportunity to carefully read the electronic waiver and fully understand the risks involved in the activities. This can protect your customer, and it can also protect your company: if your customer later attempts to sue for injuries or damage, showing that he or she had ample opportunity to review the waiver before signing may help demonstrate that your customer was aware of and assumed the risks of participating. It's harder to make that argument if your client signed the waiver long after paying for the trip, or worse yet, immediately before the activities were due to begin with little time to fully read and understand the release of liability form.
In addition, an electronic signature service such as the WaiverSign service actually provides a better audit trail for signatures than paper signatures you get through the mail. Finally, the WaiverSign electronic signature service is less expensive and burdensome than a paper system because it saves your company the cost of paper, printer-related items, storage space, filing cabinets, and time, and relieves your people in the field from the burden of having to chase down these signatures.
State and federal laws are in place that make electronic signatures just as valid as paper signatures. Learn more about electronic signature.
WaiverSign strongly recommends that you consult with an attorney familiar with your state laws, business type and the drafting of liability waivers. Many of our clients have had excellent success with the attorneys listed in our legal resources.