Liability waivers and acknowledgement of risk agreements are valuable tools for equine professionals and other recreational service providers alike because they protect providers from legal repercussions in the event of an accident. For years, Colorado courts have upheld liability waivers and other risk agreement documents for both adult and minor participants so long as a minor’s parent or guardian also signed the agreement.
However, there have been instances where courts have not upheld these documents, claiming they were improperly drafted. To increase the chance that your liability waivers and risk agreements are enforced, follow these practical tips:
- Use clear language. If you cannot read and comprehend your own agreement without the help of a lawyer, it likely contains too much legalese. While certain legal terms will be unavoidable, do your best to minimize their use.
- Make it readable. If your waiver uses tight, small print, courts can easily criticize your agreement. Use at least a 10-point font, if not larger. Bold or capitalize important sections as well. Be sure to emphasize the section in which your participants are told they are releasing you from certain legal claims.
- Offer enough information. Reasonably inform your guests of the activities you offer, along with their associated risks. Colorado law protects recreational providers against claims for injuries that participants sustained while willingly and voluntarily assuming risks, so be as transparent and comprehensive as possible. Ensure activities that you subcontract are also included because claims can potentially be pursued against you in addition to the subcontractor if they are not adequately covered in your waiver.
- Encourage questions. Because it is not feasible to list every possible risk that participants are assuming, your agreement should provide contact information for your business where a participant can address questions and discuss any concerns they have. Do your best to answer all questions as completely and honestly as possible.
- Keep your agreements short. This can be tricky since you need to cover specific items in your agreement. However, depending on the scope of the activities you offer, it should be no longer than five pages at most.
- Provide the agreement beforehand. While this may not always be an option, provide the agreement to your participants as far enough in advance of their visit as possible. This protects you from claims that participants felt coerced to sign because they spent significant time and money traveling to you. It also provides your guests with ample opportunity to learn about the activities they make partake in and their risks so they could make an informed decision about what they are comfortable with. A good practice is to provide the agreement with all other registration materials and send reminders if they are not returned in a timely manner.
- List all pertinent laws. Your agreement should contain all warning language required by Colorado law for your specific activities. If you are unfamiliar with such requirements, consult a lawyer.
- Obtain signatures from all guests. Even though liability waivers for participating minors generally must be signed by that child’s parent or guardian to release the recreation provider from liability for any accidents involving that minor, collecting signatures from all guests who are 12 and older can serve as an additional defense that the minor knew and assumed risks on their own.
To properly draft a liability waiver or other risk agreement and obtain the legal protections afforded by these agreements, it is a good practice for you to follow these steps. Be sure to consult with a trusted attorney as part of the drafting process to ensure your documents comply with all laws. It is also a good idea to follow-up with your attorney every few years after your agreement is drafted to ensure it is updated to comply with all legal developments in your state. If you have questions about your liability waivers and risk agreement documents, please contact me.
Doug Stevens, a litigation and risk management attorney at Caplan and Earnest, can be reached at 303-443-8010 or firstname.lastname@example.org.