The Importance of a Good Liability Waiver in your Coaching Practice
Are liability waivers even worth the paper they’re written on? Wait. Are they even written on paper? If properly executed (i.e., signed, either actually signed or electronically signed), the answer is yes….with some caveats. They can be a really good layer of protection should you be sued by a client or group program member. But, they’re not an impenetrable guarantee, details are important, and state laws vary.
Liability waivers essentially serve two legal purposes. First, they can serve as a legal exculpation for a future injury caused by your simple negligence. Second, they can warn your group members or client of inherent risks associated with the activity, which sets up what is known as an ‘assumption of the risk’ defense to a later tort action against you. Basically, if someone sues you for an injury, the liability waiver can be used to either get the suit dismissed, or at least mitigate the damages. As a contract, their validity and use will be considered under state law, which means that laws vary state by state.
The good news is that about 45 states will uphold and well-drafted and properly executed (signed) liability wavier, at least with respect to an adult. The other five states, like Connecticut and Montana, consider them against public policy. But, with respect to the other 45, the key words there were “well-drafted and properly executed.” Liability waivers are not a guarantee and you should consider them a layer in your protection, along with having the proper insurance and forming an LLC.
Well-Drafted Although it may be tempting to just use something you find off the internet, the words can actually make or break your defense to a lawsuit. A court may find a waiver unenforceable if the language is unclear or ambiguous. You will want the terms in there to be clear, specific to your coaching practice and any inherent dangers, and not have any conflicting language, either within itself or with any other document the client is signing. I would suggest it be a separate document and not just language used at the end of a client contract or group membership agreement.
If you’re using the waiver for in-person sessions or events, you should now be including language about the inherent risks of COVID-19 and other sneaky little virus or communicable disease. If your coaching includes any type of movement such as yoga or other exercise movement, you’ll definitely want specific disclaimer of liability for that. For any such physical movement done online through videos, it would be wise to include language to cover the fact that you are not able to check on their form, give live feedback and you don’t have any control over the equipment they’re using.
Properly Executed If you are meeting with your client in person and they are an adult, both of you can sign the liability waiver. Because most coaches these days are practicing online, capturing the signatures on one document should use an e-signature platform which complies with the ESIGN Act, such as DocuSign, HelloSign or Dubsado.
So, the moral of the story is that liability waivers should not be taken lightly. Take the time to understand not only the document they’re signing, but how they’re signing, how you’re keeping a record of what they’re signing, and how you’re keeping it up to date. Remember, it’s not a total guarantee, so consider it an addition to a good insurance policy and possibly forming an LLC or a corporation.
In my next post, I’ll discuss liability waivers and children. So stay tuned for that.
**The information in this post is for general information purposes only. It is not intended or meant to be legal, financial or other professional advice. Neither Megan Green nor Megan Green LLC is intending to create and attorney-client relationship with you. You are encouraged to seek out the advice of legal counsel or other professional advice before acting or refraining from acting based on the content contained on the Site. Megan Green LLC assumes no responsibility for errors or omission in the contents on the Site.