Link to printable version of this web page.
I. Introduction
Waivers and/or releases of liability (hear after referred to as releases) are legal agreements designed to transfer responsibility for injuries and property damage from one party to another. A properly administered release may protect the CSU and its employees from legal liability for injuries that occur to students or other individuals who participate in university activities on and off campus. They are valid and reliable legal tools under California law and may be used to provide protection from liability for accidents, activities carrying certain inherent risks, and even the negligence of CSU employees in certain circumstances.
If your department or program sponsors activities that involve risks of injury or damage to property and you do not use a release, you may be unnecessarily exposing the CSU, your campus and yourself to costly claims or lawsuits. You may also be missing an opportunity to inform participants about the risks associated with an activity or event. Although releases are primarily legal tools, they also serve an educational purpose by making participants aware of potential risks. Often that is all that is necessary to avoid preventable accidents and subsequent litigation.
Note: Using a release form that is signed by the participant of the activity reinforces the serious nature of the potential dangers.
II. Purpose of a Release
Releases signed prior to participation are considered contracts in which the participant agrees to excuse the CSU and its employees from fault or liability for losses associated with the activity in exchange for the opportunity to participate. If the participant agrees in advance that the CSU and its employees owe him/her no duty, recovery from losses (medical expenses, property damage, etc.) may be barred.
Note: Indemnity and hold harmless provisions shift the responsibility for legal expenses associated with any claims to the participant.
While a release is an important risk management tool, it should not be relied upon solely to reduce the exposure to risk. The CSU bears responsibility for conducting its activities and events in a manner that reasonably protects the health and safety of students or other participants. For this reason, the following risk control measures should be utilized in addition to the use of a release:
- Conduct a risk assessment of the program/activity prior to the commencement of the activity.
- Inspect facilities and equipment for safety hazards frequently, correct them immediately and document actions.
- Train staff in emergency response procedures and require certification for First Aid and CPR if necessary.
- Train staff and participants on how to properly use facilities and equipment.
- Develop and enforce policies and procedures that minimize risk.
- Design programs that reflect the relevant safety standards of the given activity.
- Consider purchasing appropriate insurance coverage for likely losses.
III. Elements of the CSU Releases
The Office of General Counsel strongly recommends required and voluntary activity releases contain the following elements:
- A release of liability and waiver of the right to sue if any loss results from participation in the activity.
- An express assumption of risk where the participant acknowledges understanding the nature of the activity and the risks involved, and chooses voluntarily to accept those risks.
- A hold harmless agreement where the participant agrees not to hold the CSU responsible for any loss that may result from participation in the activity.
- An indemnification where the participant agrees to pay for any losses the CSU may suffer as a result of the participant's participation in the activity.
Note: Voluntary activities require a release.
IV. Permission Slips
A permission slip requires a parent or guardian to give consent for a minor child to participate in an activity. Although they provide a defense against claims that the CSU infringed upon the parent or guardian's authority over their child, permission slips do not absolve the CSU of liability if a loss occurs during the activity. Due to this limitations, the use of a permission slip in lieu of a release should be reviewed first by your campus University Counsel or Risk Manager.
V. Informed Consent
An informed consent is designed to transfer liability from the CSU for risks identified in the consent to the participant. The participant, parent or guardian who signs the consent acknowledges that he or she has read and understood the risks and agrees not to hold the CSU responsible for any harm that results from the risks listed. However, the CSU may not be protected if a loss occurs due to a risk not listed on the consent or has nothing to do with the activity.
The Office of General Counsel has developed a specific informed consent for use by campus student-athletes. All student-athletes participating in a NCAA or NAIA sanctioned sport must sign this informed consent before being permitted to practice or compete. Participation in campus recreational sports will also require informed consent and release signatures by students.
VI. Procedures/Strategies for Risk Management
A. Instructions
Those responsible for organizing a campus-sponsored activity for which a release or an informed consent (collectively "release") is required should provide participants with a release sufficiently in advance of the activity to give each prospective participant a chance to read and consider the document. They should also inform students if an alternative assignment is available and what steps to take to participate in the alternative assignment. Use a separate release document for each participant.
Note: Do not use a "class" release with a list of participants who sign the list. There may be some misunderstanding as to what the participant is signing and a possible allegation of "peer pressure" to sign.
Before distributing the release, insert the time, location and description of the activity. Be very descriptive. For example, if the activity involves two or more locations, write down each location such as "the Getty Museum in Los Angeles and Angel Stadium in Anaheim." If the event consists of two or more activities, include each activity such as "swimming, biking and mountain climbing." Providing more details both allows participants to better understand the risks involved and provides additional protection to a campus. Although the preference is that releases should be signed on an event-by-event basis, participants may sign for multiple events over a period of time as long as each event is mentioned and described in the release.
Note: Identifying each specific location address in the release is strongly recommended.
Do not change the format of the release in any way. Releases cannot be included as the "fine print" in a larger publication such as a brochure. They must be printed or viewed as a separate document. This separation makes it harder for participants to claim that they did not know what they were signing. If you believe a change is necessary, contact your campus University Counsel or Risk Manager prior to making the change.
General language in the release is provided to inform the participant of the types of losses that may occur. Any additional information the department wishes to furnish about an activity such as expected weather conditions or any specific risks in addition to bodily injury, damage to property, liability to others, and/or damage to property of others associated with the activity should be presented separately from the release.
Anyone who refuses to sign a release may not be allowed to participate in the activity. The opportunity to participate is exchanged for the agreement to release the University from liability for injury or property damage that may result from participation. Occasionally someone signs the release after crossing out certain portions that they do not like or adding words to modify the release. You may not accept an altered release.
Note: The requirements listed above that apply to releases also apply to the use of informed consents.
B. Minors and Language
There is no legal requirement to provide releases in languages other than English. In general, California courts have held that releases written in English signed by adults who cannot read English are valid.
Note: Translations may inadvertently negatively modify the release
Participants under 18 years of age must obtain their parent/guardian's signature prior to participating in an activity. Because the participant's parent or guardian signs the release, there is no need to also have the participant sign the agreement. However, parental electronic signatures for releases for minors is not recommended.
C. Retention and Storage
The department sponsoring the activity must keep releases for at least three years after the activity ends. Releases signed by a parent or guardian on behalf of a minor must be retained for at least three years after the activity ends or until the minor turns twenty, whichever is longer.
Releases should be stored by activity date in alphabetical order by name of participant. This greatly expedites retrieval if a release is needed for a legal proceeding. If space becomes a problem, releases can be microfilmed or stored electronically in lieu of the signed original.
D. Electronic Acknowledgement
A campus may permit an individual to acknowledge their consent electronically as long as those consenting to the release are required to (a) access the electronic release using both a login ID and personal password, (b) consent to each paragraph using an "I Understand and Agree" prompt, and (c) re-enter the login ID and personal password before consenting to the entire release using a "I Have Read, Understand and Agree to this Release" prompt.
VII. Conclusion/Disclaimer
Releases of liability and informed consents represent a complex area of contract law. This manual is general and is not intended to give legal advice but only to provide basic information. University Counsel assigned to each campus and your Risk Manager are available to respond to questions or to assist in the use of releases, waivers and informed consents as part of the risk management process.