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What to know about these essential, but not bulletproof, aspects of your risk-management plan
By Jeff Yue, NSSF Associate General Counsel
In today's litigious environment, it is almost guaranteed that a business will be sued if a customer is hurt while on its premises. Venues open for recreation, such as shooting ranges, are particularly vulnerable to lawsuits--frivolous or not-- that can have devastating financial consequences. A single lawsuit, whether arising because one of your customers failed to heed the "Wet Floor" sign in the clubhouse or ignored a range safety officer's instructions in loading and unloading his or her firearm, could put you out of business if your range is found legally responsible.
Range owners and operators must be vigilant of customer lawsuits "waiting to happen" and implement risk-management measures to protect their businesses. Together with procuring business-liability insurance and making range safety a priority (e.g., offering employee safety training, inspecting facilities and equipment, posting range safety rules, etc.), liability waivers are an important component in a successful range risk-management program. A liability waiver signed by a customer before he or she is permitted to engage in shooting or other activities can eliminate, or at least reduce, the chance that your range will be sued in the unfortunate event the customer is injured. And if sued, the waiver can improve your range's ability to defend the case.
Let's understand what liability waivers are, identify caveats associated with waivers and offer some practical tips in using waivers to protect your range.
What is a waiver?
An exculpatory agreement, such as a liability waiver (sometimes also referred to as a liability release or hold harmless agreement), is a contract relieving or limiting a party's blame for harm another person may incur, such as bodily injury, as a result of participating in an activity. Other common types of exculpatory contracts include indemnification agreements and covenants not to sue. These terms are often used interchangeably with waivers, but they have completely different purposes and consequences. Though not covered here, an indemnification agreement, for the curious reader, is an arrangement where one person agrees to protect another from liability to third parties, and a covenant not to sue is an agreement entered into by an individual who has a valid legal claim against another but agrees not to pursue the claim.
It has been said that waivers are not worth the paper they are written on. This claim can be challenged with "It is better to have a waiver than not have one at all." A well-drafted, clear and unambiguous waiver can be invaluable in establishing that your range exercised reasonable care in educating customers about the risks associated with shooting activities. Individuals may also hesitate in pursuing legal action against your range if they signed a waiver expressly stating that they voluntarily and knowingly assumed these risks. Even if your waiver is not enforced and a lawsuit proceeds against you, a court may consider the waiver in evaluating the sufficiency of other legal defenses you may have and limit your damages.
Before rushing off to adopt a waiver for your range there are a few important caveats to keep in mind.
Is everyone in agreement?
A waiver is a contract and, being a contract, it is subject to all of the standard rules of contract formation and construction. A waiver is not likely to be enforced if you are unable to demonstrate that a customer read and understood the nature of the document, was informed about the risks associated with shooting activities, voluntarily chose to assume those risks and intended to relieve the range from liability arising from his or her participation in the activity.
Customers should always be afforded time to read a waiver. Consider having customers initial each page or paragraph of your waiver to reflect their acknowledgement and agreement with the terms. In the event a customer has any questions, range personnel should be readily available to answer them.
Watch your language
States require waivers to include clear and unambiguous wording and will balk at waivers attempting to absolve a party from extreme forms of liability (i.e., gross negligence, intentional acts). Waivers that do not meet specific wordsmith requirements or are overbroad are not likely going to be valid.
Many court opinions can now be found on the Internet, and law firms publish summaries of court rulings on their websites. A number of other online resources provide helpful guidance on waiver requirements in specific states. Range owners and operators should read these materials and familiarize themselves with state waiver laws. Before acting on this information, however, an attorney should be consulted to ensure that your waiver complies with your state's particular legal requirements to be enforceable.
One size does not fit all
Never assume that a waiver received from a friend at another range or one found on the Internet will protect your particular business. All waivers are not created equal. Every state interprets waivers differently, and just because a waiver may pass muster in one state does not mean it will in another. Some states are lenient in interpreting waivers, and others strictly scrutinize them. Some states only permit waivers in certain circumstances, and some do not enforce waivers at all.
Though it is not advisable to recycle someone else's waiver, it could be a helpful starting point in creating one of your own. Furthermore, you may save money by having an attorney review a waiver that you have already prepared rather than having the attorney write one from scratch.
You still can be sued
Waivers are not bulletproof. A customer that signs a waiver and is hurt on your range can still sue your range no matter how well-written your waiver is. Whether the challenge has any merit is a different question. Regardless, the fact remains your range will still have to defend itself.
Having a waiver is still better than not having one at all. Even if the waiver is not enforced, a court may consider it as strong evidence that a customer knew and assumed the risks of the activity. Be sure to keep and store all waivers signed by your customers in a safe and readily accessible place. If you do not retain them or cannot find them, your ability to defend against a lawsuit could be hindered.
What about the children?
Laws dealing with waivers signed by minors or signed by parents/guardians on behalf of minors are a mixed bag. Waivers signed by minors have traditionally been found to be unenforceable because of a minor's capacity to enter into contracts. Courts and legislatures in multiple states have enforced parental waivers, however.
A good practice is to create a waiver that is signed by both the minor and his or her parent/guardian and implement other precautions to limit your range's liability (e.g., ask about the minor's skill level, make sure facilities and equipment are safe, insist that a minor's parent/guardian is present and close by at all times, provide range safety officer supervision, etc.).
Checklist for waivers
Below are a few tips to follow in creating your own waiver. This list is helpful but not comprehensive.
- The waiver should be written in easy to understand language. If you have foreign language customers, have waivers translated and make them available.
- Warn of the full range of possible injuries that a customer could incur by participating in an activity (e.g. bodily injury, permanent disability, death or property damage).
- Identify risks assumed broadly (e.g. "known and unknown"); otherwise the waiver could be limited to known risks or risks inherent in the activity.
- Exculpatory language waiving the range's liability should be conspicuous. Use bold font, large type, and SET APPART FROM OTHER LANGUAGE.
- Expressly state that the waiver is seeking a release of your range's negligence, including negligence of its directors, officers, employees and authorized representatives, to the fullest extent permitted by law. Use the word "negligence."
- Include language that your range is also seeking to be released from the negligent acts of event participants or bystanders.
- Waivers are not likely to protect a range against liability for acts of gross negligence or other outrageous conduct.
- Waivers should be separate documents. Do not incorporate a waiver into another form like a membership application or registration form.
- Having multiple customers sign one waiver form is not recommended.
- The statute of limitations for bringing personal injury, property damage and contractual claims vary from state to state. Waivers should be retained among your records for at least until such periods expire.
Contact a lawyer within your state
It is highly recommended that ranges contact an attorney licensed in their state with experience writing and defending waivers before implementing their own. Range owners and operators should educate their attorneys about their business and the specific activities they conduct. Armed with this knowledge and the ins and outs of your state's waiver requirements, your attorney can ensure that your waiver contains the proper wording to make it compliant and enforceable to protect your range.