Liability waiver

A liability waiver, also called a prospective release, is a document signed before activity that releases a facility from liability for negligence by the facility or its employees.^{1National Strength and Conditioning Association, Strength and Conditioning Professional Standards and Guidelines, p. 21.} The NSCA describes it as offering the best legal protection against negligence lawsuits.^{1National Strength and Conditioning Association, Strength and Conditioning Professional Standards and Guidelines, p. 21.} The release appears in an exculpatory clause, which must be carefully written to be enforceable.^{1National Strength and Conditioning Association, Strength and Conditioning Professional Standards and Guidelines, p. 21.} Waivers generally also describe risks and include indemnification language (which may not be valid), a severability clause, an affirmation of legal capacity and signatures.^{1National Strength and Conditioning Association, Strength and Conditioning Professional Standards and Guidelines, p. 21.}

A waiver differs from informed consent and agreement-to-participate forms, which support an assumption-of-risk defense for inherent injuries.^{2Schoenfeld and Snarr (eds.), NSCA’s Essentials of Personal Training, 3rd ed., p. 687.} The exculpatory clause doesn’t cover inherent risks, so waivers often add assumption-of-risk language.^{2Schoenfeld and Snarr (eds.), NSCA’s Essentials of Personal Training, 3rd ed., p. 687.} Validity varies by state, and the NSCA advises retaining a lawyer familiar with your state’s law.^{2Schoenfeld and Snarr (eds.), NSCA’s Essentials of Personal Training, 3rd ed., p. 687.} Most states don’t allow a waiver to protect against gross negligence or reckless conduct, though a few may.^{1National Strength and Conditioning Association, Strength and Conditioning Professional Standards and Guidelines, p. 21.}

In practice

• Have a lawyer familiar with your state’s law review the document.^{3National Strength and Conditioning Association, Strength and Conditioning Professional Standards and Guidelines, p. 22.} The NSCA says protective legal documents shouldn’t be adopted without individualized legal advice.^{1National Strength and Conditioning Association, Strength and Conditioning Professional Standards and Guidelines, p. 21.}
• The NSCA describes waivers and informed consent forms as contracts that only adults can sign; an agreement to participate isn’t a contract, so minors can sign it.^{3National Strength and Conditioning Association, Strength and Conditioning Professional Standards and Guidelines, p. 22.}
• Give clients time to read the document and have a trained staff member explain it aloud.^{3National Strength and Conditioning Association, Strength and Conditioning Professional Standards and Guidelines, p. 22.}
• Store signed documents securely for a period consistent with the statute of limitations, which may be up to four years in some states.^{3National Strength and Conditioning Association, Strength and Conditioning Professional Standards and Guidelines, p. 22.}