Elements of a Strong Release or Waiver

Releases are great ways to transfer risk at no cost.  Due to this they are essential to nonprofits and to business which sell products or services for which there is an increased, though obvious, risk of injury or damage.  The best way to get a good release, is to sit down with your legal counsel and discuss what risks need to be transferred given your particular organization and clientele.  The following is only meant to provide talking points for reviewing your legal counsel’s draft of such a document.

1. Specificity but not exclusivity regarding risk inherent in activity- for a triathalon participant or even a volunteer at the triathalon event the risks may include exposure to weather and environmental elements, physical exhaustion and strain, and/or media exposure.  Specificity helps weed out individuals who perhaps really shouldn’t be participating but had not thought through the risks.  It also provides weight to an argument that the individual assumed the risk by participating.  However, by use of the language “including but not limited to” or language similar to that, you close any loopholes which may be created if there is a risk that was unanticipated.

2. Legalese and other unclear language- if you find the waiver uses any “heretofore” and other legalese, you should find another attorney.  The purpose of the waiver is to be sure that the volunteer or participant understands and actively chooses to participate in the organization’s activities.  Legalese, acronyms, industry specific language should either be avoided or defined.

3. Acknowledgement of any additional information or safety rules you may have provided- your waiver should encapsulate all information you have given the participant to both inform and decrease the risk of loss.  So any other documents you have provided to them or have posted on your facility should be referenced in the waiver.

4. Severability- should one portion of your waiver be found by a court to be invalid, you don’t want the other valid protections of the waiver to fall apart.  As such, your attorney should include a provision that states that if any provision is found invalid or unenforceable that finding will not affect the validity or enforceability of any other provision of the release.