CWTA - Paddling and Liability

Connecticut Water Trails Association

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Connecticut Water Trails

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Connecticut Water Trails Program

Paddling and Liability

Liability Waivers 101

Where there are recreation activities, there are injuries! Unfortunately, where there are injuries, there are lawsuits! Providers of these activities must take care to manage risk in two ways. First, you should take steps to reduce the likelihood of injury as much as possible. Secondly, you should do everything possible to protect yourselves afrom the risks of financial loss. A major financial risk is that of lawsuits by parties injured while participating in recreation activities.

Liability waivers, contrary to misconceptions of providers in the past, can be effective in protecting providers from liability for injuries resulting from the negligence of the provider. Waivers are inexpensive to obtain, easy to administer and store, and can help protect providers from the consequences of their own mistakes.

What Is A Waiver?

Legal terminology can sometimes be confusing. A waiver is a contract between the service provider and the participant signed prior to participation by which the participant agrees to absolve the provider of any fault or liability for injuries resulting from the ordinary negligence of the provider, its employees or its agents. The agreement relieves the provider of liability for injuries resulting from mistakes, errors, or faults of the provider and, in effect, relieves the provider of the duty to use ordinary care in providing for the participant

The reader, however, will often encounter other terms such as release, disclaimer, and exculpatory agreement. These terms are usually used synonymously with waiver and while there are minor differences, they are usually referring to the same type of agreement. Another common document is the informed consent agreement. Although some erroneously use it instead of a waiver, the informed consent is a different type of agreement. It is used to protect the provider from liability for the informed treatment risks of a treatment or program to which the individual agrees to be subjected (e.g., medical treatment, therapy, experiment, training program). In general, they are used when something is “done to” the individual. These are used in medicine and research and have recently been used by personal trainers.

Does A Waiver Work?

The answer to this is Yes and No. Waivers do work in most states, but not all. In states where they work, they usually work under certain circumstance, but not all. A number of factors can cause a waiver to fail. Some of these include: 1) When the service is an essential service or of public interest (e.g., medical care, electric or water service); 2) When one party has superior bargaining power over the other (e.g., teacher-student, employer-employee); 3) When the conduct is beyond ordinary negligence (e.g., gross negligence, reckless conduct, intentional acts); 4) When the waiver is to relieve one of a statutory duty; 5) When the waiver is not clear and unambiguous in its intent; 6) When fraud or misrepresentation is involved.

Waiver law is state law and, as such, differs greatly among states. Below are links to information about Liability and what the courts in Connecticut have ruled in some cases.

Remember: It is best to consult an attorney when designing your liability waiver to make sure that all bases are covered.