Waivers & Release of Liability

Introduction

Releases of liability—sometimes called waivers—are legal agreements designed to transfer responsibility for injuries and property damage from one party to another. A properly administered release may protect the University and its employees from legal liability for injuries that occur to students or other individuals who participate in university activities, whether on or off campus. Releases are valid and reliable legal tools under California law and may be used to provide protection from liability for accidents, activities that carry certain inherent risks, and even the negligence of CSUSB in certain circumstances.

If your department or program sponsors activities that involve risks of injury or damage to property and you do not use a release, you may be unnecessarily exposing the University, your campus and yourself to costly claims or lawsuits. You may also be missing an opportunity to inform participants about the risks associated with an activity or event. Although releases are primarily legal tools, they also serve an educational purpose by making participants aware of potential risks. Sometimes awareness is all that is necessary to avoid preventable accidents and subsequent litigation.

Note: Getting a participant to sign a release form reinforces the serious nature of the potential dangers.

Purpose

A signed release is considered a contract in which the participant agrees to excuse the CSU and its employees from fault or liability for losses associated with the activity. If the participant agrees in advance that the CSU and its employees are not liable, the participant may be barred from seeking recovery for losses such as medical expenses, property damage, etc. Requirements for the use of waivers is outlined in Executive Order 1051 and Technical Letter RM 2011-01.

Note: Indemnity and hold harmless provisions shift the responsibility for legal expenses associated with any claims to the participant.

While a release is an important risk management tool, it alone cannot reduce the exposure to risk. The University bears responsibility for conducting its activities and events in a manner that reasonably protects the health and safety of all participants. These risk control measures are also recommended:

Conduct a risk assessment in advance of the activity.
Inspect facilities and equipment for safety hazards frequently, correct them immediately and document the steps taken.
Train staff in emergency response procedures and require certification for First Aid and CPR if necessary.
Train staff and participants on how to properly use facilities and equipment.
Develop and enforce policies and procedures that minimize risk.
Design programs that reflect the relevant safety standards of the given activity.
Consider purchasing appropriate insurance coverage for likely losses.

Elements

The Office of General Counsel strongly recommends activity releases contain the following elements:

A release of liability and waiver of the right to sue if any loss results from participation in the activity.
An express assumption of risk where the participant acknowledges understanding the nature of the activity and the risks involved, and chooses voluntarily to accept those risks.
A hold harmless agreement where the participant agrees not to hold the University responsible for any loss that may result from participation in the activity.
An indemnification where the participant agrees to pay for any losses the University may suffer as a result of his/her involvement in the activity.

Note: Voluntary activities require a release. Releases are not for employees performing work duties.

Permission Slips

A permission slip requires a parent or guardian to give consent for a minor child to participate in an activity. Although they provide a defense against claims that the University infringed upon the parent or guardian’s authority over their child, permission slips do not absolve the University of liability if a loss occurs during the activity. Due to this limitation, the use of a permission slip in lieu of a release should be reviewed first by your campus University Counsel or Risk Manager.

Informed Consent

An informed consent is designed to transfer liability for risks identified in the consent from the University to the participant. The participant, parent or guardian who signs the consent acknowledges that he or she has read and understood the risks and agrees not to hold the University responsible for any harm that results from the risks listed. However, the University may not be protected if a loss occurs due to a risk not listed on the consent or has nothing to do with the activity.

The Office of General Counsel has developed a specific informed consent for use by campus student-athletes. All student-athletes participating in a NCAA or NAIA sanctioned sport must sign this informed consent before they are allowed to practice or compete. Participation in campus recreational sports also requires informed consent and release signatures by students.

Procedure Recommendations:

Instructions
1. Those responsible for organizing a campus-sponsored activity for which a release or informed consent (collectively “release”) is required should provide participants with a release well in advance of the activity to give each prospective participant a chance to read and consider the document. They should also inform students if an alternative assignment is available and what steps are involved in that alternative. Use a separate release document for each participant.
  Note: Do not use a “class” release with a list of participants who sign the list. There may be some misunderstanding as to what the participant is signing and a possible allegation of “peer pressure” to sign.
2. Include the time, location and description of the activity in the release. Be very descriptive. For example, if the activity involves two or more locations, write down each location such as “the Getty Museum in Los Angeles and Angel Stadium in Anaheim.” If the event consists of two or more activities, include each activity such as “swimming, biking and mountain climbing.” Providing more details allows participants to better understand the risks involved and provides additional protection to a campus. Ideally, participants should sign separate releases for each event, but they may sign a single release for multiple events over a period of time as long as each event is mentioned and described in the release.
3. Do not change the format of the release in any way. Releases cannot be included as the “fine print” in a larger publication such as a brochure. They must be printed or viewed as a separate document. This separation makes it harder for participants to claim that they did not know what they were signing. If you believe a change is necessary, contact your campus University Counsel or Risk Manager prior to making the change. Only use the release on the Risk Management website to make sure you have the most recent one.
4. General language in the release is provided to inform the participant of the types of losses that may occur. Any additional information the department wishes to include about an activity—expected weather conditions or any specific risks in addition to bodily injury, damage to property, liability to others, and/or damage to property of others associated with the activity—should be provided separately from the release.
5. Anyone who refuses to sign a release or informed consent should not be allowed to participate in the activity. The opportunity to participate should be exchanged for the agreement to release the University from liability for injury or property damage. Occasionally someone signs the release after crossing out certain portions that they do not like or adding words to modify the release. You may not accept an altered release.
Minors and Language
Releases are available in English, Spanish, Tagalog, Vietnamese, Chinese (simplified & traditional versions), and Korean. In general, California courts have held that releases written in English and signed by adults who cannot read English are valid. If the language needed is not one of the approved interpreted waivers, Risk Management must be contacted.

Participants under 18 years of age must obtain their parent/guardian’s signature before participating in an activity. Because the participant’s parent or guardian signs the release, there is no need to also have the participant sign the agreement. Parental electronic signatures for releases for minors are now accepted.
Retention and Storage
The department sponsoring the activity must keep releases for at least three years after the activity ends. Releases signed by a parent or guardian on behalf of a minor must be retained for at least three years after the activity ends or until the minor reaches the age of 20, whichever date is later.

Releases should be stored by activity date in alphabetical order by name of the participant to expedite retrieval if a release is needed for a legal proceeding. If space becomes a problem, releases can be microfilmed or stored electronically instead of the signed original.
Electronic Acknowledgement
A campus may permit an individual to acknowledge their consent electronically, as prescribed in Technical Letter RM 2011-01.

Conclusion/Disclaimer

Releases of liability and informed consent represent a complex area of contract law. This manual provides general information and is not intended to give legal advice. University Counsel assigned to each campus and your Risk Manager are available to respond to questions or to assist in the use of releases, waivers, and informed consents as part of the risk management process.