By Doyice J. Cotten

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By Doyice J. Cotten
T
Using waivers of liability can help
protect the financial integrity of
university recreational and
intramural programs.
racey Spiegler, 21, a full-time University of Arizona student diagnosed
with hypertrophic cardiomyopathy, was
exercising on a stationary bike at the student recreation center when she suffered cardiac arrest. A staff member in
charge called 911 but failed to perform
CPR. Spiegler turned blue and stopped
breathing, and her pulse stopped. She
remained in a coma for a day and a half,
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and suffered brain damage.
Spiegler later sued, alleging negligence on the part of the university. (See
Spiegler v. State of Arizona [Cause No.
CV 92-13608, Maricopa County Superior
Court].) An expert witness testified that
the staff was inadequately trained and
that emergency care was below the
standard of ordinary care. Jurors
awarded Spiegler a total of $5 million
plus another $100,000 to her mother for
loss of consortium.
No waiver had been signed by
Spiegler relieving the university of liability for negligence. Could the university
have gained protection and avoided a
$5 million loss by requiring students participating in recreational programs to sign
a waiver, assuming it was well-written?
Probably so. While waiver law varies
greatly from state to state, in at least 44
states, a well-written waiver, voluntarily
signed by an adult, will protect the service provider from liability for injuries
resulting from the negligence of the service provider.
Yet, a question asked by many administrators is whether waivers will function
as intended in a school or university
setting. Waivers designed to limit the
legal redress of students are often challenged, often on the basis that the
waiver violates public policy. For example, a school board policy that requires
all students taking required physical
education classes to sign waivers of liability might not be in the best interest of
the public as a whole, since schools
might not be as motivated to provide a
safe environment. Waivers are also
challenged by those claiming students
have an unequal bargaining position. In
other words, students would have no
choice but to sign a mandated waiver
Could the university
have gained
protection and
avoided a $5 million
loss? Probably so.
for a course they were required to take.
Some schools have used waivers for
required activities, such as mandatory
physical education classes — for example, in an introductory Foundations of
Physical Education class that is
required of all freshmen students. As a
general rule, however, if the activity is
required, waivers relieving the school of
liability for injuries due to negligence
are not upheld.
Whittington v. Sowela Technical Institute (858 So.2d 236 [5th Circuit, La.,
1983]) was a significant case relating to
this issue. A senior nursing class was
required to go on a field trip for which a
signed waiver was required — and no
alternative classes were available. The
court stated that such a waiver was in
violation of public policy since it was
not truly voluntary.
Another court, however (Thompson v.
Otterbein College, 1996 Ohio App. LEXIS
389), found that a similar waiver signed
by a college student prior to taking a
course in horseback riding to satisfy a
physical education requirement was not
unconscionable and did not violate public policy. The difference was that the
student chose to take this course when
other physical education courses requiring no waiver were available. “The situation might be different,” the court
stated, “had the school required all students to sign waivers of liability for all
physical education courses.” Despite
this, the court did not uphold the waiver
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as it was not clearly written.
Typically, waivers for non-required
school activities (elective classes and
voluntary intramural activities) are
upheld and protect the service
provider. Consider three cases:
• Boyce v. West (862 P.2d 592 [Wash.,
1993]). Boyce, a college student
enrolled in a scuba class offered as a
physical education elective, signed a
release exculpating Gonzaga University
from liability for injury due to negligence, and died during a dive. A wrongful-death suit claiming public-policy
violation was filed.
University, 666 N.E.2d 87) a university
student was injured during a motorcycle training course. Terry claimed unfair
bargaining power, alleging that the
course was required for licensing and
that the university owed a statutory
duty. She also alleged that the contract
was of public interest, thereby making
the waiver illegal.
The court ruled that the waiver was
not against public policy because
courses were not required for licensing,
ISU was not required to accept all applicants and there was no evidence that
ISU held a monopoly in training.
There is a case, Kyriazis v. University
of West Virginia (450 S.E.2d 649 [1994]),
that runs counter to the general rule and
might spell trouble in the future for
those relying on waivers in intramural
programs.
Jeffrey Kyriazis, a sophomore rugby
club player, was required to sign a
waiver relieving the university of liability for injuries that might be incurred.
The team practiced three times weekly
for a period of six to eight weeks leading
up to the season. In the first match, Kyriazis became dizzy, left the game, and
was later found to have a thrombosis.
One case might spell
trouble in the future
for those relying
on waivers in
intramural programs.
In upholding the waiver, the court
found no public interest in a private
school offering scuba instruction as an
elective course. The court relied upon a
similar case involving a student who
died during a YMCA scuba class (Madison v. Superior Court, 250 Cal.Rptr. 299
[Cal.App. 2 Dist., 1988]), where the
court had declared that scuba diving
does not involve a public duty.
• After a community college student
drowned while taking a scuba course,
his wife filed suit against the college and
the instructor (Scroggs v. Coast Community College Dist., 239 Cal.Rptr. 916 [Cal.,
1987]).
The student had signed a statement
that waived any claims he or his “heirs,
representative, executors and administrators thereof...have or may have
against the said The Coast Community
Colleges [sic] or any or all of the above
mentioned persons...by reason of any
accidents, illness, injury or death, or other
consequences arising or resulting directly
or indirectly from participation in SCUBA
diving under the auspices of the Coast
Community Colleges occurring during
said participation, or any time subsequent thereto.” (Italics added.)
The court determined that a pre-injury
waiver of liability would normally be
enforceable, but that the language in the
particular waiver was so vague as to
offer no protection from liability for negligence.
• In a 1996 case (Terry v. Indiana State
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Waive Goodbye
At the high school level, waivers
and minors don’t mix.
Waiver cases involving secondary
school students are rare. A decade
ago, the Odessa (Wash.) School District sought to require all students
and their parents or guardians to
sign a waiver releasing the district
from liability resulting from negligence arising from the interscholastic activities programs.
Parents challenged the rule, and
the Supreme Court of Washington
ruled in Wagenblast v. Odessa
School District No. 105-157-166J
(758 P.2d 968 [Wash., 1988]) that
such waivers violate public policy,
explaining that courts are usually
reluctant to allow those charged with
a public duty requiring reasonable
care to contractually rid themselves
of that obligation. Interestingly, however, the court seemed to ignore the
issue of age in its decision.
More recent cases illustrate the
ineffectiveness of waivers when
used with minors. Dilallo v. Riding
Safely, Inc. (22 Fla. L. Weekly D396
[1997]) involved a 14-year-old girl
who was injured while horseback riding after the girl had signed a
waiver. The court ruled that even
though the waiver clearly stated that
Bar-B Ranch was released from liability for its negligence, the service
provider was not protected because
the signer was a minor. The court
went on to say that the waiver would
have been effective had the defendant been of majority age.
Some service providers attempt to
avoid this problem by having a parent sign the waiver, but Smith v.
YMCA of Benton Harbor/St. Joseph
(550 N.W.2d 262 [1996]) illustrates the futility of this strategy. A
10-year-old Michigan girl was injured
when another youngster dove into a
swimming pool on top of her. Her
mother released the YMCA from further liability in exchange for a monetary settlement of $3,275. Eight
years later (when the girl turned
18), she filed suit against the YMCA
for damages.
The YMCA relied upon the postinjury release of liability signed by
the parent as a bar to liability. How-
He sued for more than $100,000 alleging
negligence by the university.
The university claimed that the
waiver signed by Kyriazis served as a
complete bar to his monetary recovery.
Kyriazis maintained that such a waiver
required by a state university was
against public policy, and alleged that
the waiver violated his equal protection
right guaranteed by the Constitution.
On the public policy issue, the West
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ever, the court ruled that a parent
has no authority, merely by virtue of
being a parent, to waive, release or
compromise claims by or against
the parent’s child. A trial court ruling
was reversed, and the case was
remanded to trial to determine if
there was negligence on the part of
the YMCA.
Similarly, the court in a New York
case (Alexander v. Kendall Central
School Dist., 634 N.Y.S.2d 318
[1995]) ruled that a minor is not
bound by waivers signed by a parent. (The court also found that the
waiver, signed by a student wrestler
who was injured during a match
when he was driven from the mat
and struck the scorer’s table, was
vague and ambiguous.)
The court in a 1997 case, Zivich v.
Mentor Soccer Club (1997 Ohio
App. LEXIS 1577), went against
most previous court decisions. The
court declared that a waiver signed
by a parent did protect the service
provider because the waiver was
really a covenant-not-to-sue, by
which the parent contracted not to
sue on behalf of the child. The court
further indicated that such a waiver
was in the public interest, since it
enabled an agency to offer recreational activities to the public.
In spite of this favorable ruling, service providers are cautioned not to
rely upon waivers when dealing with
minors. Minors can disaffirm most
types of contracts, and it is the general rule that, absent statutory or
judicial authorization, a parent cannot waive, compromise or release
the cause of action of a minor child
merely by virtue of the parental relationship.
Indeed, the court in Zivich went on
to say that the injured player’s claim
against Mentor Soccer Club still
exists — only the parents’ right to
sue on behalf of the child is prevented. The court even listed other
options open to the youngster,
including having a guardian
appointed who could file suit on
behalf of the minor, and having the
minor wait and file suit upon reaching majority age.
— D.J.C.
Virginia Supreme Court reasoned that
athletics are an integral and important
element of the education mission at the
university; the physical welfare of students cannot be ignored; the provision
of recreational activities to students fulfills the educational mission and performs a public service; and as an
institution charged with a duty of public
service, the university owes a duty of
care to its students when it encourages
them to participate in any sport.
In examining the waiver, the court
pointed out that the Code of Student
Rights and Responsibilities of the university requires that students follow
instructions of the administration. Further, the waiver was prepared by a
lawyer and the student had no benefit
of counsel. If Kyriazis wished to play
rugby at the university, he had no
choice but to sign the waiver.
In spite of the fact that participation
was voluntary, the court concluded that
the university qualified as a public service and possessed a decisive bargaining position at the time of signing.
But the case also illustrates another
important limitation of waivers applicable to state-supported institutions. Kyriazis claimed that the university allowed
students to participate in both intramural sports and club sports, but that
only participants on club sports teams
were required to sign a waiver. The
court found no rational basis for a policy of treating intramural and club
sports participants differently, and thus
ruled that the waiver was in violation of
the equal-protection guarantee.
As it runs counter to the general rule,
this decision could have a significant
impact on intramural programs in state
universities if courts in other states
elect to follow this precedent.
Directors of recreation programs have
several waiver format options. Generally, sports-applicable waivers appear in
stand-alone waiver form, a paragraph or
two within some other document or a
paragraph or two at the top of some
sort of sign-up sheet. (No disclaimer on
the back of a ticket has yet met the
requirements of a contract and protected a service provider from liability.)
The two waivers most frequently
used by intramural and recreation programs are stand-alone waivers and
those appearing on sign-up sheets. The
former are the most detailed and comprehensive, and as such are recommended in most cases. (For a detailed
disussion of stand-alone waivers, see
“Before the Fall,” May 1996, p. 29.)
Waivers in the shorter format obviously do not include sufficient space to
include all of the points suggested in
that earlier article. There are, however,
certain points that must be included to
ensure that any waiver will protect the
service provider if it is challenged in
court.
The decisions in Thompson and Scroggs
emphasize the need for care in the development of even short-form waivers. The
following four areas are vital:
• The appearance of the waiver. Use a
descriptive title such as Waiver and
Release of Liability. Be certain the print
size can be easily read (10- or 12-point
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type) and make the key language conspicuous (through bolding, upper case,
color or underlining). Be certain that the
waiver is always visible at the top of the
sign-up sheet and refer to the waiver
adjacent to each signature blank.
• The legality of the waiver. Certain
legal precautions are necessary to consider. A phrase such as, “In consideration of my participation, I agree to
release...” should be included. Avoid
any untrue or fraudulent statements in
the waiver. Finally, the duration of the
waiver should be specified by use of
some phrase such as, “now and forever” or “throughout the season.”
• The clarity of the agreement. The single most important requirement is that
the waiver be clear and understandable
so the intent of the parties to absolve the
service provider from liability for negligence is not ambiguous. The waiver
should include a phrase such as “I
hereby release...from any and all present
and future claims resulting from ordinary negligence on the part of...” Refer
specifically to the “ordinary negligence”
of the service provider or its employees.
Be certain to specify which parties are
relinquishing rights and which parties
are protected by the waiver.
• Notification to the signer of inherent
risks. Have the signer acknowledge the
fact that the signer knows of, under-
stands and appreciates the risks that
are inherent to the activity. Clearly
describe the nature of the activity and
clearly inform the signer of the inherent
risks involved in the activity. (This is
particularly important if the activity is
an uncommon activity or if there is reason to believe that participants would
Make the key language
conspicuous through
bolding, upper case,
color or underlining.
not already be familiar with the activity
and its risks.) Have the signer affirm voluntary participation and the assumption of the inherent risks of the activity.
While it is presented for educational
purposes only and carries with it no
guarantee or warranty of effectiveness
in protecting any service provider from
liability of any sort, the brief waiver
shown at the beginning of this article
should help in the development of an
effective waiver for university intramural and recreational programs. It is
suggested that the institution’s attorney
examine and finalize any waiver used in
a recreational program.
Using waivers of liability can help protect the financial integrity of university
recreational and intramural programs.
However, as discussed, there are exceptions to this rule. Even well-written
waivers are not upheld in the courts of
a few states, and waivers relieving
schools of liability for injuries due to
negligence in required activities are
generally not upheld.
Still, intramural directors and other
administrators involved with student
activities should rely on waivers for
financial protection — with some
caveats. Learn all you can about
waivers, and realize their limitations. Be
certain your waiver adheres to the
guidelines discussed. And most important, institute a complete risk-management plan that includes risk reduction
techniques, insurance and other protective techniques. ■
Doyice J. Cotten is an emeritus professor
of sport management at Georgia Southern University and principal of Sport Risk
Consulting, 403 Brannen Drive, Statesboro, GA 30458, 912/764-4848.
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