Are Waivers Really Necessary?
There seems to be a general misunderstanding in the equine industry about the importance of legal Waivers and how they can protect you from costly liability claims. In my experience, most are poorly written and not enforceable in court, so even if you have a Waiver you may want to look at it again. I’ve read some poorly drafted Waivers that would never stand up in court.
If you are a stable owner or instructor, you should always have boarders and students sign a “Release of Liability, Waiver of Claims, and Assumption of Risks and Indemnity Agreement”, which is more commonly referred to as a “Waiver”. By signing a Waiver, the participant is giving up certain legal rights, including the right to sue or claim compensation following an accident. When determining whether a Waiver is enforceable, a court will consider the circumstances surrounding its signing, including the wording of the Waiver itself. If the Waiver is prepared and presented properly to the participant, the courts have upheld that the Waiver is enforceable and prevented the participant from receiving monetary damages for her injuries even when the injuries have resulted from negligence. Provided the Waiver satisfies certain questions in law, the courts, in my view, tend to be favourable to a defendant and enforce Waivers when the participant engages in risky sporting activities, such as horseback riding. It should be noted, however, that a minor child cannot enter into contracts, so when a parent or guardian signs a Waiver on behalf her minor child and the minor child subsequently suffers an injury, the parent or guardian is waiving her right to sue, not the minor’s.
To be effective, a Waiver must be clearly worded and highlight that the participant signing the document is giving up certain legal rights, including the right to sue following an accident. If the Waiver contains unclear language and the person signing does not understand it, the courts will hold that the Waiver is unenforceable. Other factors that a court will take into account when determining whether a waiver is enforceable are:
- Does the clause that the participant is agreeing to apply to the claim being made? Any clause in a Waiver will be subject to strict interpretation by a court. If, for example, the Waiver fails to refer specifically to liability for negligence and the participant’s injuries resulted from the defendant’s negligence, the Waiver will not be enforceable.
- Is the effect of the exclusion clause contrary to normal expectations? There are situations when a court will not uphold a Waiver for public policy reasons. If, for example, a defendant knowingly or recklessly endangers the participant’s health or safety, the Waiver will not be enforceable.
- What is the format? In other words, is the Waiver easy to read and understand?
- How long is the document?
- How much time was made available to read it? The participant should have adequate time to read and understand the Waiver. Furthermore, if you, the stable owner or instructor requires the participant to sign the Waiver, the participant should read and sign it in front of you and you should witness the participant’s signature. Requiring a participant to print your Waiver off the Internet is ineffective, in my view. How do you know if the participant read the Waiver and understood it?
If used properly, a stable owner or instructor can effectively minimize their risk with a Waiver. Since stable owners and instructors often have unique circumstances that may have to be addressed in their Waivers, I do not recommend copying someone else’s Waiver.
The law on Waivers is an area that I regularly research because of its complexities. Needless to say, you should consult an experienced equine lawyer to review your waiver to make sure it’s protecting you from liability.
If you have any hypothetical situations that you would like me to consider, please email them to me at harveen@thaulisportslaw.com. I’m always looking for material to write about.
(A version of this article is also in July 2013’s edition of Saddle Up Magazine.)