Would you hire a plumber who refuses to warranty his work? Would you work with a contractor who refuses to guarantee that he will roof your house in a workmanlike manner? Would you retain a professional like a lawyer, doctor or architect who wasn’t insured?
I’m guessing your answer to these questions is “No”. Maybe even a loud “NO!”
If that’s the case, then why do you sign documents on a regular basis waiving your ability to hold accountable those folks who you trust with the safety and welfare of your children? I bet you’ve done so, probably without even realizing what you’re doing. Over and over and over again.
For instance, this past weekend my parish co-hosted a soccer tournament with a local soccer club. The sponsors required each player sign a “Waiver & Release of Liability” form as a condition of playing. The waiver directs that “in consideration of being allowed to participate”, the player – and his parent – agree to prospectively release the Club and the parish athletic association from various harms resulting from a number of factors, including the sponsors’ negligence.
Missouri law explicitly defines “negligence”. In this instance, “negligence” is the failure of one to do that which an ordinarily careful person would do under the same or similar circumstances.
Think about that. In exchange for your money, the Club and the parish require you to prospectively forgive them for any harms, losses or injury that your child may suffer because the Club or the parish failed to do that which an ordinarily careful person would do.
Would you hire a plumber under those circumstances? How about the roofer? Or your family physician? Me?
How About You?
The situation facing the folks in my parish and neighborhood are not unique.
Many of you are active and have active family lives. Last weekend your child may have celebrated a birthday party at a recreation center where the party featured a “rock” climbing activity, jumping on a trampoline or playing in a bounce house. You may have run in a 5K earlier this Spring. Or your son or granddaughter may have just wrapped up a baseball season in which they hit at the local batting cage throughout the season.
If so, I’m certain you saw some form of the “Waiver & Release”, the pre-printed form given to you by a business hosting an activity or event. The form typically requires you to provide your identifying information – name, address, telephone number and date of birth – and agree that you are relieving the host from “any and all liability” arising out of the failure of the host to provide a safe place and environment for the activity. You must sign the form before you or your child are permitted to participate.
More and more businesses are demanding their customers – you – sign these “Waiver & Release” forms as a condition to use their gym or equipment, course or premises. Clauses shielding the business from fault and liability can be found in everything from Summer camp and daycare applications to sporting event forms and recreation agreements. All consumers need to be aware of these clauses and think twice before signing any form containing phrases in which you agree “to release, indemnify or hold harmless” the host.
So, What’s So Wrong with “Release, Indemnify or Hold Harmless” Language?
For starters, the 7th Amendment of the Constitution guarantees all citizens the right to have any dispute decided by a jury of their peers. This clause or something similar is a type of contractual provision in which the consumer gives up this federally protected right.
Language is typically inserted in the “Waiver & Release” form in which you acknowledge some benefit you are supposedly receiving “in consideration of” the business permitting you to use its facilities. The object of the form is to provide the business with a shield to protect it from liability should you or your child be injured as a result of the negligence of the business or its employees.
Why do Companies Put these Clauses in their Contracts?
Companies love “Waiver & Release” forms because the forms make it is easier for the business to win any dispute that may follow the business’ failure to use ordinary care to provide a safe environment for its patrons. In essence, the company’s lawyers point to the language as a procedural bar to your access to the civil justice system. Rather than focus on the harm and loss suffered by you or your family member and the failure of the business and its employees to do what the law requires them to do, the court looks toward the form as a simple procedural way to resolve the dispute.
In these cases, “form wins over substance” and the company effectively blocks your access to the courts through your agreement to “release, indemnify and hold harmless” the business in exchange for your patronage.
The company may also use the form as a substitute for insurance. People make mistakes. Insurance exists to protect people (and their employers) when mistakes are made. In exchange for payment of a premium, the insurer provides coverage to the business for any harm that may result because of negligence.
Responsible businesses insure themselves. Responsible businesses insure themselves to protect their clients. “Waiver & Release” forms are unnecessary when a business properly insures itself, its employees and its activities.
What Can I Do About It?
Carefully read every contract you sign. Make sure that you are not giving up your constitutional right to a jury trial should a dispute arise. If you see a clause that appears to take away your access to the courts by using words like “release”, “indemnify”, “waive” or “waiver”, “hold harmless” or “limit liability” then take action:
- Strike the clause by running your pen through the language you believe to be a problem
- Refuse to sign the form
- Find another company, association or sponsor to give your business – after all, you are paying for the activity!
Speak up if the company refuses work with you. Tell the person with whom you are dealing that you do not agree to waive your constitutional right. You may be surprised; from time to time companies honor your insistence to take the clause out or let you or your family member participate in the activity without signing the “Waiver & Release” form.
If the business refuses and insists that you must sign the form or not be able to participate, then should a dispute later arise, you may have an argument that the contract is a contract of adhesion which is not enforceable. Then, you’ll need a lawyer. And, perhaps, a bit of luck.
Matt Devoti is a partner with Casey & Devoti, a St. Louis-based personal injury law firm. Matt handles a wide variety of personal injury cases with a special emphasis on victims of drunk, impaired and distracted driving. Matt and his law partner, Matt Casey, are also authorized speakers for EndDD.org’s ‘End Distracted Driving’ Student Awareness Initiative.