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Are liability waivers enforceable? What makes one hold up

Published · Business deals, money and releases

Often, yes, but not always and not for everything. A waiver is a contract in which a participant agrees, before an activity, not to sue for injuries caused by its ordinary risks and, where the law allows, by the organizer's ordinary negligence. Whether a court enforces one depends on where you are and how it is written.

What courts usually look for

  1. Clear, conspicuous wording. A heading that says it is a waiver, plain language, readable type, and the release itself in bold or capitals rather than buried in small print.
  2. The word "negligence". Many US states only enforce a release of the organizer's own negligence if the waiver says so expressly.
  3. Specific risks. Listing the real risks of the activity shows the participant knew what they were accepting.
  4. A voluntary, recreational activity. Courts enforce waivers for optional recreation, such as climbing, skiing or fitness classes, far more readily than for essential services such as medical care, where waivers are often void.
  5. A signature from the right person, before the activity, with a real chance to read it first.

What a waiver cannot do

  • Excuse gross negligence, recklessness or intentional harm. Courts almost everywhere refuse to enforce a waiver against these.
  • Work in every state. Louisiana, Montana and Virginia treat waivers of personal injury claims signed in advance as void. Other states restrict them by statute: New York, for example, voids waivers of negligence for gyms, pools and places of recreation that charge a fee.
  • Exclude injury claims in the UK. A business cannot exclude or limit liability for death or personal injury caused by its negligence, under the Unfair Contract Terms Act 1977 and, for consumers, the Consumer Rights Act 2015. A signed form still shows the participant was told about the risks and accepted them, but it will not stop a negligence claim for injury.
  • Reliably bind children. Many US states will not enforce a parent's advance waiver of a child's own claims, at least against a commercial business, although some, such as California and Ohio, have enforced them in some situations. Collect a parent's signature anyway: it records their consent and that they were told the risks.

A waiver is not a substitute for safety or insurance

Even a well-written waiver only helps with the ordinary risks of a properly run activity. Maintain equipment, train staff, keep incident records and carry liability insurance. Your insurer may require specific wording, so ask them before you finalize the form.

Waiver or release?

A waiver is signed before an activity, for injuries that have not happened yet. A release is signed after something has gone wrong, usually in exchange for a payment, to settle claims that already exist. For that, use the general release template.

Use the free template

The free liability waiver template follows the points above: a clear warning at the top, the specific risks you list, assumption of risk, a release that names negligence in capitals, the limits the law sets, optional emergency medical and photo consent, and a parent or guardian section for minors. Fill it in online, or download the Word file and add your insurer's wording. Personal trainers can pair it with the personal training agreement.

General information, not legal advice. Waiver law varies a lot between states and countries; have a lawyer check your waiver for your activity and location.

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