Adventure tourism. Trampoline park birthday parties. A neighborhood gym or commercial landlord. These are examples of businesses that are likely to ask patrons to sign a waiver before visiting or using their facilities. During the pandemic, it seemed nearly every business asked customers to sign one so as to defer liability should someone contract the virus while on their premises. So, what do business waivers actually do for your business, and does your company need one? 
The purpose of a business waiver
Pennsylvania does not prohibit businesses from including waivers of liability in contracts; however, waivers are not typically favored. Hence, any waiver should be drafted by an attorney before its inclusion in any contract. In order for almost any business to operate with an in-person component, some level of business insurance is required. To satisfy insurance requirements, it’s important for a business to make customers aware of potential harm or danger they may encounter there. In addition to simple things like signage or property rules, a business waiver is a contractual document for a patron to sign acknowledging these risky activities or situations and assuming some level of responsibility.
Common language found in a business waiver includes “I hold harmless” or “any and all liability” to show the signer’s release of liability. At its core, a business waiver may protect a business from a lawsuit should an injury (or during pandemic times, contracting a virus) occur while specified actions take place on their property – within reason.
Creating a meaningful business waiver
To have a business waiver that “holds up” in court, it’s wise not to grab the first template you find online, tweak it and get it out there. DIY waivers may not address certain industry standards and statutes, state law and other important nuances about your operations – they may even add risk at the end of the day. Having an attorney create or review your waiver will help ensure it actually protects your business. Pennsylvania courts will consider a waiver clause valid if:
- The waiver does not contravene public policy
- The contract must be between persons relating entirely to their own private affairs
- Each party must be a free bargaining agent to the contract.
A valid waiver could still be determined to be unenforceable by a court if the language of the waiver is not clear that a person is being relieved of liability for his own acts of negligence.
Secondly, depending on where your business operates, consider offering it in multiple languages to ensure guests understand the risks in their native language.
Lastly, review your waiver annually or if your business changes significantly. Perhaps you operate a gym, and you started offering memberships while having limited equipment. Now that you’ve been in operation for a decade, your service offerings have grown to include a pool and immersive fitness classes. You may need to update your waiver to reflect these changes and ensure your clients and members are aware of risks.
A business waiver doesn’t cover recklessness
A business waiver is not a catch-all document that releases a business from accountability for all injuries. While some sectors, like the equine industry and recreation, are additionally governed by statutes, businesses still have a responsibility to operate safely, having documented procedures and protocols in place to do so.
For example, if a patron signs up for a horseback riding lesson, they likely will sign a waiver that states they know the inherent risks associated with riding a horse – falling off the horse, a horse unexpectedly taking off, etc. However, the patron may not accept the responsibility for the stable’s employee not properly attaching the saddle to the horse or being placed on an untrained horse. 
Not all risks can be assumed by a patron signing a waiver, so it’s important to reduce risks in other areas of your operation. Should a lawsuit be filed against your business, it will likely be on the basis of negligence or, worse, a possible wrongful death suit. In the presence of a signed waiver, a court of law will review both the actions and behaviors of the business and its employees, as well as the customer, in determining liability.
How to back up a business waiver
Unfortunately, accidents do happen. What are ways to help ensure your business waiver holds up?
- Staff training – for businesses operating in higher-risk spaces, it’s critical that employees have the training they need to help prevent injuries and harm to customers, like properly securing protective gear. Some businesses may be required to train employees in first aid or even have industry certifications. Be sure to have documented protocols in place, as well as proof of employee training and certifications, ensuring certifications are current and not expired.
- Equipment maintenance – equipment should be examined and/or tested on a routine basis, and these practices/tests should be documented. A mountain climbing company cannot use rusty carabiners and thinning ropes in hopes of keeping customers safe. Maintenance logs can absolutely be admissible in court, so ensure employees are recording their actions properly.
- Signage and education – while on the grounds of your business, consider posting signage that reinforces information included in the waiver, as well as denotes unsafe or restricted areas. It’s common to also have customers watch an educational video reiterating safety protocols and appropriate behaviors. Plus, with the rise of digital waivers, customers have a greater tendency to sign a waiver without reading it. Informing them about risks in other ways hopefully reduces the likelihood of injuries due to lack of knowledge.
A waiver clause is an important first step to insulate a business from liability. Business waivers are intended to be a single layer of protection for your business, but they can’t shield you from all liability. Your business must still take steps to ensure there are several layers of safety for your customers and accountability for you and your employees.
Legal support for your business waiver
Need help crafting or reviewing a business waiver? Or even understanding if you need a waiver at all? Our Corporate Law team is here to help. Collaborating with our Employment Law team, we can also support your business with training for your employees, as well as Litigation, representing you in the unfortunate event of an injury or possible suit.
Depending on the profile of your business, a waiver may prove helpful in protecting your reputation as well.
