Updated August 30, 2021

Risky Business

If you are conducting any activity on your sanctuary grounds that involves volunteers or visitors from the public, it’s critical that you have a policy of gathering accident waiver and release of liability forms from everyone who comes on property. This basic piece of legal documentation is the first line of defense from liability and lawsuits in the unfortunate event of someone becoming injured or generally upset enough to attempt to pursue legal recourse against your sanctuary. Although in different jurisdictions the likelihood of being able to enforce liability waivers varies, a signed waiver from a litigious visitor only strengthens your case in any potential conflict.

A good waiver will utilize contractual exculpation to excuse your organization from claims of simple negligence and provide definite evidence of your warning of the risks to participants. This legally serves to protect you with the tried and true Assumption Of Risk defense under tort law. This doctrine stands for the proposition that in a case where an injured plaintiff knew of the risks of a dangerous activity in advance, a court will limit the liability for the injury. This defense only holds water if the injury was covered under the stated risks in your waiver, and the waiver as written follows all of the laws of the land on which your sanctuary falls. This defense is further strengthened by additional warnings of risk, including signage, instructions by staff, and even brief visitor safety courses.

Signed Waiver, No Worries?

It’s important to note that even an airtight waiver does not necessarily prevent you from ever being sued or being liable for an injury on your premises; any contract can be argued against in court, and truly avoidable, grossly negligent, or illegal situations historically tend to be decided in favor of an injured participant. However, a signed release goes a long way to demonstrating that a participant was aware of and willing to accept the risks inherent on visiting a sanctuary and can deter a legal battle before it forms.

Actual Insurance Is The Best Insurance
Even the most defensible situation can incur dramatic legal costs. This is one more reason why it’s critical to carry general liability insurance as a safeguard against unexpected damaging expenses.

Things To Ensure In A Waiver

There are a number of simple ways that you can help make your waiver and policies as well-drafted (and therefore legally defensible) as possible. A thoughtful release waiver should:

• Be offered in a large enough typeface (at least 10 point font size) and printed clearly.
• Be written as clearly and as unambiguously as possible. It should also be written with as much layman’s terminology as appropriate, avoiding dense legal verbiage that could be interpreted as intentionally confusing.
• Be offered alone for review rather than combined with other documents. Some legal experts believe that this makes the document less conspicuous, and therefore more open to legal challenge.
• Be offered as a document for one person to sign, rather than providing a single waiver for a large group to collectively sign. The less time individuals are reasonably expected to review the waiver, the more likely a waiver’s legitimacy will be challengeable.
• Include a phrase similar to “in consideration of participation…”, which courts will check in order to define the waiver as a valid contract. Consideration means that each party is getting something out of it, namely, one party gets to participate and the other gets to not be held liable in turn.
• Include warnings of risks, including permanent disability and death, which may sound grim but demonstrates that the signing party should be aware that there are real risks involved.
• Include assumption of both known and unknown risks, as to not limit the scope of your defense in the event of a more unexpected event.
• Include a phrase releasing the organization “to the maximum extent permissible under applicable law”, which helps keep most of the contract enforceable in the event that certain parts are struck down in court.
• Be signed each at event when an individual visitor arrives, rather than only once; it only helps your case to have repeat waivers from an attendee rather than going off of an older release in the event of a later dispute.
• Include an area for a parent or legal guardian’s signature in the event of a minor signing the waiver. A minor is legally incapable of signing away their right to sue, and there are some questions as to whether a parent can sign away their child’s rights, but it’s an important safeguard nonetheless if you have minor participants, especially if a child is given ample plain-speech warnings of the inherent risks at your sanctuary.
• (Optionally) include a clause granting permission to take photos or video of the visitor and allow the use of this material in the future. This is a very helpful tool when crafting publicity material of your successful tours and events. This way you can make the best photo album or recap video without having to worry too much about who incidentally makes it into your promotional material.

Don’t Do This!
A waiver must not attempt to disclaim responsibility for gross negligence or terrible misconduct. Responsibility for negligence, however, can be disclaimed in a waiver.

Here, you can find a downloadable template to assist you in crafting your liability waiver. Once downloaded, make sure to craft your waiver to fit your sanctuary’s unique environment and comply with the laws of the land that govern it! This document should be reviewed by an attorney before being put into use.

SOURCES:

Are Waiver/Releases Worth The Paper On Which They’re Written? | Sadler

Are The Liability Waivers You Sign Legally Binding? | Quora

The ABCs Of Liability Waivers | Recreation Management

Are Releases Legally Binding? | LinkedIn