Transcript

Host: Hello, and welcome to Prevention and Protection, the United Educators (UE) risk management podcast. In this episode, Heather Salko, senior risk management counsel at UE, interviews Alyssa Keehan, UE’s director of risk research, about whether waivers and assumption of risk forms are valuable risk management tools, when to use these forms, and some tips for writing them. Now here’s Heather and Alyssa.

Heather Salko: Hi, I’m Heather Salko, senior risk management counsel. And I’ve been joined by Alyssa Keehan. Alyssa, thank you, and welcome to the podcast. We’re so happy you’re willing to share your expertise with us today.

Alyssa Keehan: Thank you, Heather. Happy to be here.

Salko: Great. Well, as you know, in risk management, we field lots and lots of questions about waivers and assumption of risk forms used in a variety of situations and for myriad activities. Can you tell us what they are and whether they’re a useful risk management tool?

Keehan: Well, sure, and I want to clarify, I think when used in the right circumstances, waivers, releases, assumption of risk forms, can be a tremendously valuable risk management tool. I think it’s true, even if they aren’t enforceable, which I’ll explain a bit more later. But maybe we should back up a bit, and I’ll explain the differences between a waiver, a release, and an assumption of risk form. Essentially, a waiver and a release, they’re very similar in that they’re documents that are asking the person signing it to forfeit their right to sue. A waiver uses the language waiving the right to sue while a release uses the language releasing their right to sue. An assumption of risk form is distinct from a waiver or a release because it’s not asking to forfeit their right to sue.

But it’s simply asking them to acknowledge and assume the risks associated with an activity. They can still bring a claim or lawsuit, but the value may be diminished because of this document. Where it can get to be a bit confusing is that a waiver and a release, they usually also contain language asking the signer to acknowledge and assume the risks associated with an activity. But then, of course, they take it even further and ask the signer to forfeit the right to sue.

Salko: Thanks, Alyssa, that’s a really helpful distinction for us to make. I do want to go back to something that you said a little bit earlier. You said waivers and assumption of risk forms can be valuable even if they’re not enforceable. Can you talk a little bit about why they wouldn’t be enforceable? If they aren’t enforceable, how can they still be useful for risk management?

Keehan: There’s a few different ways that they can be valuable, even if they’re not enforced. First, documentation. They can be a great piece of documentation of the institution’s risk management efforts because they are documents and they can be compelling proof that the person who signed them was educated about the risks associated with an activity and voluntarily assumed the risks connected with that activity. Second, just having a waiver in play may deter someone from bringing a claim. It’s hard to prove a negative, but just the fact that someone signed a waiver may make them less likely to want to bring a claim in the first place.

Also, generally, waivers and assumption of risk forms, they can act as leverage for negotiating the settlement of the claim. When you have this piece of documentation there and you’ve got an active liability claim, you can use it to reduce the value when you’re trying to negotiate the settlement of that claim. A lot of times just having a waiver or assumption of risk form in play as part of evidence in a liability claim, it can really be helpful in ways that don’t have to do with enforcement. But it’s really important to know that those benefits only accrue or are most likely to accrue when waivers and assumption of risk forms are used in the right circumstances.

Salko: Well, then how would you describe the right circumstances for using these documents?

Keehan: Yeah, good question again. There are a couple of bright line rules, I think, regarding these documents that are important to cover here. I think, first and foremost, it’s really important that you use them in cases of voluntary activities. For educational institutions, that means that these documents are most effective when the activities are not required by the institution for course credit or for scholarship or for other reasons. I’ll give you an example. Let’s say that you’re required to attend a field trip as part of the course, and the only way you can get that course credit was to actually attend the field trip. That may not be a great situation in which to put a waiver or ask the students who are attending that field trip to sign the waiver because they don’t have a choice.

That’s the only way that they can get course credit is by attending the field trip. However, if you offered an alternative means for them to get the course credit that didn’t require attending that field trip, then perhaps issuing a waiver or assumption of risk form in that situation might be more appropriate. Similarly, if we look at some of the stuff that’s going on now around COVID-19 risks, if you’re asking a student to sign a waiver or assumption of risk form relating to COVID-19 risks before you allow them back on campus, that document may be more likely to be appropriate or helpful if students are offered an online or remote option to pursue their particular field of study. But if that’s the only way that they can pursue their study is to sign that waiver, then it may not be enforceable because it may not truly be a voluntary activity.

In addition to using them in situations where the activities underlying that waiver or assumption of risk form are voluntary, the second thing you want to keep in mind is, you don’t necessarily want to use a waiver with a minor, and you certainly want to check the laws in your particular jurisdiction. But generally speaking, a waiver or release, they’re just generally not enforceable against minors. When I use the term minor, typically, that’s someone under the age of 18. Although, I think in a few states, it might be under the age of 21. Again, you want to work with counsel. Now, parents, on the other hand, of that particular minor, you can ask them to sign that waiver, parents or guardians, and they can give up their right to sue, but they cannot waive the right of their child.

Just, again, something important to consider, and it’s a nice segue to my next or third bright line piece of guidance here, which is to involve counsel. So important to involve counsel since, again, a release is a legal document. You want a lawyer with experience drafting these documents in your particular jurisdiction because the laws relating to waivers and releases are very jurisdiction-specific. I would definitely recommend enlisting legal counsel as a reviewer when the institution is using maybe a layperson as the drafter, or if you’re adapting a release developed by another organization, you definitely want to have a lawyer review that release before you go live with it.

Then, lastly, probably my last bright line rule for these documents is to make sure that they are narrowly tailored and specific to the activities covered by the release or assumption of risk form. To do this, you want to make sure that the person most knowledgeable about that activity, that’s going to be the subject of the release. You want to make sure that person most knowledgeable has worked with your counsel to articulate the following pieces of information. One, you want to have the start and end dates of the activity covered by that release included there in the release. The location of the activity, if you can, or the location of whatever’s being covered by that document, the names of the people from the institution who will facilitate the activity. You want to list these individuals by their position, not necessarily their name, so if there’s turnover you don’t have to change your form.

The participants, that’s very important, and whether they are minors. The institution’s role, is the institution sponsoring the activity? Is it allowing its premises to be used for the activity? If you can clarify that in the document, that’s very important too. And then last, but certainly not least, the risks associated with the activity. For example, you want to note if there is a risk of severe bodily injury or death. That should be noted in the document.

Salko: OK. That’s a lot of information to include, but I certainly understand why you want things to be specific. I’m going to go back to something you said earlier, you said there is a one big issue of misperception around waivers, releases, and assumption of risks, it’s that they have to be enforceable to be valuable. Obviously, you have explained already that that’s not true. And that was very helpful. As you’re sitting here right now thinking about this, are there other misperceptions that are along the same lines that maybe you can clarify for the listeners?

Keehan: Yeah, I’m not sure if it’s the common misperception, but I will mention it anyway. A waiver is just not a substitute for sound risk management practices. Don’t neglect an area of risk and simply think, “Well, we’ll just issue a waiver and that will protect us.” Really a waiver should compliment an institution’s education and overall risk management strategy for managing an area of risk. Because if a claim arises, a court is going to look at the whole picture. If it looks like the institution was trying to be careful and implement strategies for minimizing risk in a particular area, and the waiver or assumption of risk document was just one tool of many being used to manage a risk, then they’re more likely to view that tool favorably and potentially enforce it.

Actually, I do have another misperception to share. And that’s the misperception that a waiver’s sole benefit is in the right to sue that is being waived or the risks being assumed. Really when done correctly, these documents should support or be reflective of the institution’s education and training about an area of risk. It’s really identifying those risks and both parties’ responsibilities for mitigating the risks. It’s really helping to remind the person signing about the education and training that they’ve already received.

Salko: That’s a really, really good and important point. When you say education and training, what should be done in conjunction with a waiver or an assumption of the risk document before someone undertakes an activity?

Keehan: Well, it’s like I said, the document itself can be deemed educational if it’s well-written and has a good description of the risks associated with that activity, and if you can show that the person signing it was actually given the time to read it, ask questions about it. Ideally, when you issue a release or assumption of risk, you really want to create an environment that shows that the person signing it has sufficient time to understand what they were signing and that they, again, they voluntarily chose to sign the document.

Salko: Well, then how might an educational institution do that to provide that adequate time and information?

Keehan: A couple of ideas come to mind. I think prior to the start of an activity, you might want to hold a mandatory orientation meeting, or it could be done through Zoom ─ doesn’t have to be in person ─ where you distribute the waiver, assumption of risk form in advance of the meeting. Go over the content, cover the risks associated, safety strategies. Again, you want to encourage questions from those in attendance. Then upon the conclusion of the meeting, you request that they sign and date it, or even give them a few days to review it and sign and date it. If an orientation meeting isn’t possible, I think you want to make sure that the participants receive a copy of that document at least one day before the activity begins.

I would go ahead and provide contact information in there for an institutional representative who can answer questions about the document’s contents and consider putting the contact information into the body of that release or assumption of risk form.

Salko: OK, that’s good advice for everyone listening. Wow, you did cover a lot of information about waivers and assumption of risk forms today. Any parting thoughts that you might have before we conclude the podcast?

Keehan: A few parting thoughts. I think first, waivers and assumption of risk forms can be very valuable in terms of reducing the value of a claim and mitigating an institution’s liability exposure. That’s true even if they’re not enforceable. Look to see if it makes sense to use them in a variety of activities. But as you evaluate their appropriateness, you want to remember to involve counsel, you want to make sure that the activity that’s the subject of that document, the waiver or assumption of risk, that it’s a voluntary activity. You don’t want to use them as a substitute for risk management, but really as support and documentation of the risk management that the institution is exerting over an area of risk.

Then, lastly, make sure you’ve thought about how you’re going to store these documents so that you can have access to them if a claim is brought. Again, think about how long you’re going to store them for. But I would say that’s an issue you want to raise with counsel regarding the length of time to retain them for. That pretty much covers it.

Salko: Great. This is so helpful. Again, you gave everyone listening a lot of really good and helpful information. I want to tell our listeners that in addition to this topic, you can always find other podcasts, and of course, risk management publications on our website, www.edurisksolutions.org. I encourage everyone to go and check the website out, if you haven’t already, for documentation and risk management publications relating to this and other topics. So, Alyssa, thank you very much for joining us and talking to everyone about this important subject, one that I know that is on the minds of many as students are coming back to school.

Keehan: Thanks, Heather.

Host: From United Educators Insurance, this is the Prevention and Protection podcast. For additional episodes and other UE risk management resources, please visit our website, www.edurisksolutions.org.