EVENT WAIVERS FOR ATTENDEES

Published in BreakOut magazine (Spring 2004)

In 1995, a sales convention sponsored a fun football event for attendees at a Florida hotel. Contestants wore thickly padded sumo wrestling costumes and they “battled” on Super Bowl Sunday. Unfortunately, a 25-year old participant was severely injured in the game and eventually died from complications. A jury later awarded his widow $11.8 million against the hotel, which was warned of the game’s risks, but decided against having attendees sign waiver agreements.

The purpose of this article is to explore whether host companies or associations have potential liability when a meeting planner hires a speaker who promotes audience involvement, and whether attendee waiver agreements can reduce the risk of costly lawsuits. The article also underscores the importance of general liability insurance for all events.

A waiver or release is a written agreement which relieves parties from liability for the negligent acts they commit in the future. Attendee waivers are essential when participants engage in active games or contests. However, how many event planners consider such liability protection in the following situation?

Hypothetical: An association’s event planner hires Lana, a high energy public speaker for a monthly luncheon at a hotel to discuss the topic of “Exceeding Goals.” As part of the presentation, Lana rolls a 20-foot warehouse ladder on wheels into the audience, and ascends to the top step to reach toward the sky. In her zeal to appeal, she then started to kneel. But her high heel didn’t feel the step’s slippery steel, which sent her flying down below into attendee Larry’s meal (veal). Poor Larry got knocked to the ground and screamed, “Hey, what’s the deal? That beat to my heart I can no longer feel!” I’m fairly certain that a future lawsuit will be real.

How Plaintiff Attorneys Think: Since everyone in the hypothetical had a role in the event, Larry’s attorney could sue each party -- the speaker (negligence), the hotel (possibly for inadequate medical personnel or equipment on premises), and the association (failing to apprise attendees of possible risks). The attorney may argue that the event planner knew that the speaker would bring a ladder into the audience and that the association did not adequately inform attendees in advance of potential risk.

Contracts: The association has three contracts in the above scenario – one with the speaker, the hotel, and each attendee signing up for the luncheon (for simplicity, assume that the association has a contract directly with the speaker, rather than separate speaker/planner and planner/association contracts). In each of these contracts, there is an opportunity for an organization to limit liability. For example, associations hiring a speaker should routinely have an Indemnification clause, where the speaker will reimburse the association for any lawsuit stemming from the content or delivery of a speech. Indemnification language can be negotiated to specifically cover potential negligence committed by the speaker, as in our hypothetical. This clause holds the speaker accountable to the organization for money damages the latter might have to pay the plaintiff.

Event planners and attorneys spend a lot of time making sure the language in speaker and meeting facility contracts meet their client’s needs. Oftentimes, however, the host organization does not protect itself by obtaining waivers from attendees. The reasons appear to be twofold. First, we often do not anticipate that attendees would be injured at a luncheon. Second, there is an uneasiness about presenting such information to attendees. Below I detail how language relating to releases may be included in a non-offensive manner, as an attendee signs up for an event, whether online or in person. This precaution will provide extra defenses to a negligence claim for insurance companies, and might protect the host organization if it is underinsured.

Defenses to a Negligence Action: Larry’s attorney will argue that the parties breached their duty of care and proximately caused his client’s injuries. Three main defenses to this claim include Comparative Negligence, Assumption of Risk, and Waiver/Release.

Comparative Negligence means that the plaintiff and defendants in a lawsuit are apportioned a percentage blame for their roles in a case. For example, if a jury awards a plaintiff $1,000,000 in a negligence action, but finds that the plaintiff contributed to his own injuries by 20%, then the judgment will be reduced to $800,000. Likewise, each defendant could be apportioned a percentage liability. State laws vary on the application of this defense. In our example, a jury would probably assess Larry zero percent liability, while deciding to divide blame among the speaker, hotel, and host organization.

Assumption of Risk means that a plaintiff was made aware of, or had knowledge of certain risks; thus, the defendant did not breach its duty of care to the injured patron. If you look at the reverse side of a ticket stub from a sporting event, it always says that the ticket holder voluntarily assumes all risks and dangers incidental to the event, and releases everyone connected to the event from liability.

Obviously, no speaker that you hire will be firing baseballs or hockey pucks into the audience. Take a moment though and think about events you’ve attended where the speaker took risks with attendees. If you believe there is potential liability, now you’re thinking like a lawyer, and should consider the following suggestions.

Tips on Waivers

Event waivers can be inserted into online registration forms. They should be simple, brief, and prominently displayed, so people understand what they are “clicking and agreeing” to. Similar waivers should be included on registration forms which are mailed, faxed, or completed on-site. Note that some courts will not enforce a release which was agreed to months in advance of a meeting, or on the spot.
At an event, the person introducing the speaker should remind attendees to stay alert since the program involves audience participation or unexpected surprises
Waivers should only apply to specific conduct for which the party is attempting to avoid liability.
Courts generally will not enforce a waiver agreement if its language is too broad in scope, attempts to waive a party’s “gross negligence,” or violates a public policy. State laws vary to a great degree.
A judge might not enforce a waiver if the attendee signing it did not appreciate the risks involved.

General Tips on Liability

Meeting Planners should:

have an Indemnification clause in contracts with a client, if hired as an independent contractor and not as an employee of the client
receive written confirmation that a host company or organization has adequate general liability insurance and all applicable special liability policies (e.g., if alcohol is served)
ensure in writing that event facilities have adequate medical equipment and personnel on premises
ask attendees prior to an event whether they have any special accommodation requests or needs

As a final note, event planners need to exercise common sense when dealing with contracts and lawyers. Attorneys have a tendency to “lawyer up” their contracts to include incomprehensible or unnecessary language. Remember that you are the expert in the meeting industry and must strike the proper balance between the advice provided by counsel and your own practical business concerns.

This article is intended for educational purposes only, and not as legal advice.

Perry Binder, J.D. is a legal studies professor in Georgia State University's Robinson College of Business in Atlanta, Georgia.