What Behavior Consultants Need To Know About Liability Waivers
A FEW DEFINITIONS
Entire books have been written about these legal terms, but for the purposes of this article, let’s agree on the following:
Negligence: The failure to use the care that a reasonably careful person would use.
Gross negligence: A voluntary act or failure to act that is likely to result in grave injury.
Intentional tort: An act taken with the intent to injure or cause damage.
Liable: If you are negligent, grossly negligent, or commit an intentional tort and someone is injured or damaged, you may be “liable” to them for money damages.
Lawsuit/cause of action: If you are liable to someone for an injury or damages, they may have a cause of action against you; if so, they can take you to court by filing a lawsuit against you.
Liability waiver/release of liability: A legal contract intended to reduce the chance of a lawsuit being filed against you or your business, or to reduce the amount that can be recovered, by shifting liability for your negligence to your client.
Whether you work with aggressive birds or fearful horses, or whether you prefer puppies and kittens, working with animals is a risky business. Dogs, cats, birds, horses, and humans – all can act in unexpected ways. People (and pets) can get injured. A smart business owner will use education, training, and good practices to reduce the risk of accidents, but you also need to protect yourself and your business in case something unforeseen happens and someone does get hurt. Insurance is one obvious answer, but another popular mechanism for managing risk, one that may even be required by your insurance company, is a liability waiver. The laws concerning liability waivers vary from state to state, so if you are considering using one, or want to know whether the one you are using is suitable, you should consult with a lawyer who is knowledgeable about the laws in your state. While you should consult with a lawyer in your jurisdiction, I do want to share some general considerations to guide you:
- A liability waiver is an exchange of promises. When your client signs your liability waiver form, they are entering into a contract with you or your business. In exchange for being permitted to participate in the activity or class, they agree to pay you money and promise to release you or your business from liability for certain injuries or damage. That exchange of promises – you promise to let them participate, they promise to release liability – is necessary for the liability waiver to be effective. A liability waiver should include language reflecting that exchange of promises.
- Liability waivers must be clear. To be enforceable, a liability waiver must clearly show that the client actually intended to hold your business harmless for injuries or damage to them even if you or your business were to be negligent. If the waiver form is ambiguous, it may be construed to favor your client instead of your business. Because the party who drafts the contract is in a better position to make sure it is clear, courts generally decide that any ambiguity should be construed against the drafter. The bottom line is that if someone files suit against you and your release is not clear, a court may decide that the lawsuit against you can go forward.
- Liability waivers must be obvious. Don’t try to hide the release language, for example by putting it at the back of another contract or by using tiny print. Make it a separate document and have each person sign one. You will have a better chance of enforcing a liability waiver and avoiding a lawsuit if the client had a real opportunity to read, understand, and agree to the release.
- A liability waiver should spell out the dangers. Don’t try to hide the risk of injury from your clients; include a general description of the danger in the waiver form. By letting them know what the risks are, they can make the informed decision to accept responsibility for any injuries. You don’t need to include a list of worst case scenarios; a general statement along the lines that working with animals involves a risk of injury is generally sufficient. Your lawyer will advise you how much detail is required.
- A liability waiver must be read, understood, and signed. Make sure your clients sign the liability waiver before engaging in the activity, and that they have the time to read and are able to understand it before signing, so they are informed and able to choose whether to proceed. This may require accommodating language, eyesight, or other differences. Electronic signing has become accepted in many jurisdictions and can streamline the process. Remember to give your employees permission to refuse service to a client who fails to complete a form.
- A liability waiver will not prevent all lawsuits. A liability waiver can shift some liability for injuries from you or your business to the injured party, but it cannot always stop someone from filing suit or bringing a successful claim against you. In most states, a valid liability waiver can protect you from ordinary negligence claims, but a client can still sue you for gross negligence or intentional torts (see inset for definitions). Also, depending on the state, a liability waiver signed by a parent or guardian may not protect you from a lawsuit by a child who is injured, or by a non-signing spouse. If you routinely have family members attending class along with the primary handler, you should talk to your lawyer about how to handle that additional risk. Still, a good liability waiver can discourage an injured party from filing suit for ordinary negligence claims, and if they do file suit, it may cut the lawsuit short. Liability insurance and incorporation are intended to protect you from the rest.
Liability waivers are not a cure-all, but a well-drafted form can provide your business with protection against a costly lawsuit. Developing a proper liability waiver does require an investment. You should take the time to think about the risks to your employees, your clients, and their dogs, and how you can minimize those risks. A good lawyer can guide you through the process of assessing your business risks, identifying ways to reduce those risks, and minimizing the damage when something does go wrong. The result will be a liability waiver with enough “teeth” to protect you.
Christina Schenk-Hargrove, Esq., CPDT-KA, has been an attorney in Massachusetts for 20 years. She has considerable expertise in business law, litigation, estate planning, and expert witness preparation. A professional dog trainer, she is also fascinated by learning theory as it applies to both dogs and humans. You can find her at www.cshlawllc.com and www.dogtrainersumbrella.com