Adventures are everywhere and more accessible than ever! But, with more adventure comes more risk for the participant and more risk for the business (and its owners). As you can imagine, the question\request I get most often from adventure business owners is related to liability waivers and protecting the business from legal risk in the case of an accident (because accidents do happen!) This article discusses the reality of liability waivers in Wisconsin and some critical points every adventure business owner should think about while developing the critical culture of safety that is required to protect their business and investment!
The Liability Waiver and the Law in Wisconsin
First, a little background:
Reality Check 1: A business with a great waiver, but bad (or no) business & safety practices to back that waiver up, is absolutely still open to legal risk – the waiver won’t save them. Don’t believe me, Just ask Tough Mudder.
Reality Check 2: The Wisconsin Supreme Court has never upheld a liability waiver when it has been challenged by an injured person. That doesn’t mean that no waiver will work – just that Wisconsin is strict when it comes to what the waiver must contain to be enforceable against a regular customer.
A Release of Liability and Agreement Not to Sue (The Waiver)
A good, well drafted, well organized, and easy to understand waiver is a key component of minimizing risk. The waiver should be: 1) tailored to your business; 2) part of your regular business process; and 3) in plain English.
Additionally, the waiver should not attempt to avoid all types of liability (willful or reckless conduct) because that will be grounds for invalidating the waiver all together in Wisconsin.
Finally, the waiver should: 1) offer the participant the chance to bargain its terms; 2) be in its own document; and 3) detail the risks of participation explicitly.
(and this is just a short list…)
Reinforcing the Waiver With A Culture of Safety
More important than the waiver, though, are all the things the business does to back the waiver up and reinforce that safety is a key component of the business model. Here are a few things to think about:
1) How does the waiver look? Can anyone besides an an attorney understand it? If you don’t understand your own waiver – it’s time to update it. Legalese is a dying language, and the waiver (and any agreement for that matter) will be better if it’s written in plain language – so anyone can understand it with relative ease.
2) How is the waiver presented to customers? Are they allowed to ask questions? (Especially if the waiver is filled out online or at home). You should not provide legal advice on particular parts of the waiver – but you shouldn’t have a policy of NOT answering any questions at all either (which is the case at a lot of places).
3) Do customers have a comfortable space to sit down and read, understand, and sign the waiver? This might seem trite, but it’s not. Can you reasonably expect anyone to understand the waiver if it’s crumpled up on their knee and they are squeezed into a couch in the corner? I wouldn’t want to sign a document under those circumstances.
4) Is the participant’s identity checked when they arrive? How does the business ensure everyone has signed a waiver? Again, seems stupid – but it’s an easy step to take.
5) What other safety training is in place? After the customer signs the waiver, are they given further instruction on how to be safe? In skydiving and zip lining, there are brief classes or additional videos that the customers watch. Further, training for the customer and opportunities to ask questions are key.
6) If the activity is inherently dangerous (like Tough Mudder) – what safety protocols are in place? Accidents will happen, but what if something really bad happens? How will it be handled? How are staff trained to respond?
7) What about angry customers – how does the business deal with them? Again, seems unrelated – but it’s not. An angry customer with a lot of money can file a lawsuit pretty easily – what steps are in place to deal with problem customers?
A waiver is an absolute “must have” for any adventure business, but a waiver by itself is useless without the culture of safety to back it up. Now is the time to review your waiver for compliance with Wisconsin law and to think critically about where the waiver fits into the larger safety and risk reduction strategy in your business. If you need assistance, OGS can help!