A waiver letter relieves a party of liability, but cannot be enforced if the damage is due to negligence or against public policy. Acknowledge the risk and explicitly waive liability for damages in the letter. However, the waiver may not apply in all situations, such as negligence or against public policy.
There are a variety of circumstances that dictate that someone write a waiver letter. Such a letter is typically used to relieve a party of a particular type of liability. In writing a waiver letter, it is important to first acknowledge that there is a particular risk and then deny any right to hold the designated party liable for any damages arising out of that particular risk. Even if you follow those instructions, however, a court cannot enforce the liability waiver if the damage suffered is due to the negligence of that designated party or enforcement of the waiver would be contrary to public policy.
The first step in writing an effective waiver letter is recognizing the risk that is the source of potential harm. By acknowledging the risk, it is implied that the waiver of liability is done knowingly, which is a necessity for enforcement. For example, if the waiver letter is being written for a gym membership, the confirmation may state, “I acknowledge the inherent risk of personal injury from the use of exercise equipment.”
The other necessary element in a waiver letter is an express waiver of any liability for any damages that may occur due to the recognized risk. It is important not only to state explicitly the type of damage, but to identify the party for which you are trying to disclaim liability. Continuing the gym membership example above, the waiver can state “I hold the gym harmless for any personal injury I may suffer from using the gym’s workout equipment”. All that is required beyond that is the person’s signature waiving the right to hold the other party liable.
While the opt-out letter may contain all of the above and may otherwise be fully valid, it may not apply in every situation. For example, if a gym member who has signed a similar waiver injures himself on equipment that has been carelessly maintained, the liability waiver may not apply. The reason for this is that it was not normal use of the equipment that resulted in injury to the member. Rather, it was the negligent maintenance by the establishment that was the direct cause of the damage to him.
Furthermore, some situations make the application of this derogation contrary to public policy and are therefore not applied by the courts. An example is a patient entering surgery who waives the right to any potential malpractice claims against the surgeon arising out of the surgery. While it may depend on the rules of the jurisdiction, a court is unlikely to enforce such an agreement as it would downplay the importance of due diligence in healthcare.
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