Breaking Down Waivers and Disclaimers
You hear all the time as a business owner- “You should probably have a waiver for that” or “Make sure to include disclaimers on your website” but what really are waivers and disclaimers, and what do they have to do with your business? Well they can be pretty important in helping protect businesses from liability claims by making it clear to customers, clients, and other consumers that the business will not be held responsible for certain acts or omissions. They also help put the customer on notice so they won’t feel like they were left in the dark about the risks of a product or service (which can also help discourage them from suing!). It’s good for liability protection and it’s good for customer service.
Here’s a more bit of information on what waivers and disclaimers are and how they work in real life:
Liability waivers are documents that help protect businesses from legal claims by stating that the person signing acknowledges and accepts the risks associated with an activity in which they are about to engage. They can also protect businesses from negligence claims as well, although instances of intentional, reckless, or grossly negligent conduct cannot be waived in Pennsylvania. Think of a form that you’d sign if you were about to go bungee jumping or skydiving. The company wouldn’t likely want to accept responsibility if something went wrong, so the liability waiver would make it clear to you what risks you’re accepting before you take the leap.
Disclaimers are statements that specifically outline the scope of responsibilities and obligations that one party has for another. Disclaimers usually make it clear for businesses what they will not be held liable for. An example of a disclaimer can be found at this bottom of this post. Although we’re happy to provide you with general overviews on legal topics, if you have a specific matter you need to discuss, it’s a good idea to reach out to us for help, as what’s posted in these blogs does not constitute specific legal advice. Other examples include “Trainer X is not a medical doctor, please speak to a physician before engaging in physical activity” or “Our products are made with natural wood and therefore we cannot guarantee that the product does not contain insects or other organisms, therefore you accept the risks (and the benefits) of buying our natural wood products.”
The use of liability waivers has become commonplace in the age of COVID-19. As some businesses and individuals have tried to transition back to a new normal, many businesses have started to incorporate the use of liability waivers into their day-to-day business practices to make it clear to customers that the risk of transmitting or contracting COVID-19 has not gone away and that the customer appreciates and accepts the risks associated with being in public while there’s an ongoing pandemic. At the same time, if the business fails to adhere to CDC guidelines and other public health protocols, they likely will be unable to waive any liability they may incur associated with COVID-19, as they could be found to have acted in a grossly negligent or reckless manner.
Even outside of COVID-19, if a business decides to use a liability waiver, it cannot assume that the waiver will protect the business from liability in all circumstances, especially if the business fails to take affirmative reasonable steps to avoid damage or injury and incorporate them into their normal business practices. For example, if a bungee jumping place knows that it is using faulty equipment, that waiver won’t likely offer a lot of protection. Disclaimers can also not offer full protection - for example, if you disclaim that you are not a doctor and therefore someone should speak with one before working with you, but you offer diagnosis and lead a customer to believe otherwise, that disclaimer may come into question.
The moral of the story is waivers and disclaimers are another great tool in your liability and customer relations toolbox but not the end-all be-all. Using waivers help make sure the customer is aware of the risks from the beginning (which again can go a long way in not having the customer get mad enough to sue because you didn't warn them) and helps provide some contractual protection if things do get to court.
The Trellis Template Library™ offers a basic liability waiver for sale if your business is in need of some liability protections for in-person services, activities, or events. We also offer a Photo (Use of Likeness) Release, which allows your business to use a photo, video, etc. of a customer or client and has them waive the right to sue you for that use. Check these out along with some other templates! And we offer affordable rates for helping draft disclaimers uniquely worded for your specific business.
As always, if you have any questions, please contact us or an attorney in your state. We’re always happy to help!
DISCLAIMER: This blog post is meant for informational purposes only and does not constitute specific legal advice or create an attorney-client relationship. Readers should discuss their specific situation with an attorney.