What Are Waivers and Releases?
Waivers and/or Release of Liability Form 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, CSUSB 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, the University 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.
A release (also referred to as a release of liability and waiver of the right to sue) is an important element of a complete release form.
Note: Using a release form that is signed by the participant of the activity reinforces the serious nature of the potential dangers.
What Student Activity Requires a Waiver of Release?
- Generally, if the activity involves a student who is given specific date/time/place instructions to complete the activity, it is considered required and falls under the University’s liability insurance program. As such, no waivers are required. If students are merely given an assignment and can use discretion as to date or time or place of the activity, it is considered voluntary even though the result (i.e., report) affects the student’s grade. As such, no waivers are required. Field trips are special required activities because of the transportation and potential field site hazards and require liability releases.
Should Members of the Public Who Participate in University Sponsored Activities be Required to Sign Releases?
- Members of the public who participate in any University sponsored activities that are subject to personal injury or property loss should sign a release of liability. For any activity where sports or physical activities are involved or which presents a danger to the participant, releases are required.
How Long Should I Keep a Release?
- 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 20, whichever is longer.
How Should I Store the Release?
- A release is not invalidated by the passage of time, but obviously the University must keep the document in order to assert it as evidence in a later claim or lawsuit. For this reason, organization and safe storage of releases are very important. 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.
What Should I Do if Someone Attempts to Modify the Release?
- Occasionally someone signs the release after crossing out certain portions that they do not like or adding words to modify the release. You must not accept an altered release.
What Should I Do if a Student Refuses to Sign the Release?
- If the student refuses to sign a proper release form to participate in a high-risk, non-required, non-academic activity, the student should be denied the right to participate. However, if the student refuses to sign a release to participate in a “required” academic activity, the instructor should note the refusal on the form, indicate that the student has been advised of the risks involved and permit the student to participate.
What if I Want to Change or Add Something to the Release?
- Executive Order 1051 does not allow for the release to be changed. The EO defines how releases should be printed, including their layout and font size. For this reason, 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 later on that they didn’t 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.
What if the Participant is a Minor?
- A parent or guardian must sign the form if the participant is a minor. Because the participant’s parent or guardian signs the release, there is no need to also have the participant sign the release.
What if the Participant Does Not Speak or Read English?
- There is no legal requirement to provide releases in languages other than English. In general, California courts have held that English-language releases signed by adults who cannot read English are valid.
May the Release be Consented to Electronically?
- Yes. Please follow guiidelines in Technical Letter RM 2011-01.
Does the Release Have to Provide Specific Information About the Types of Risks Associated With the Activity?
- General release language informs the participant of the types of losses that may occur. If you would like to provide further information about the risks associated with the activity, you may do so as long as that information is presented separately from the release.
Should a Volunteer Sign a Release Before Volunteering?
- No, individuals designated as University volunteers are covered under the CSU’s General Liability and Workers’ Compensation programs as long as they have been processed through the use of the Human Resources’ procedures. For this reason, they do not sign releases prior to volunteering. For this same reason, employees acting within the course and scope of their employment do not sign releases. However, for academic field trips, volunteer drivers (not considered as University volunteers) should also sign an appropriate “Academic Field Trip Waiver of Liability and Hold Harmless Agreement” as any other student on the trip. Remember, that a volunteer driver should still be authorized to drive on a University sponsored activity. See “Authorization to Use Personal Privately Owned Vehicle.”
What Happens if a Release is Not Used?
- By using a release, you are being good stewards of the CSU’s resources by providing a defense in the event of a claim or lawsuit. The Chancellor has recommended the use of releases. Failure to use them may subject an individual campus or department to increased scrutiny or liability losses
What are the Basic Elements of a Release?
The elements of a basic release are:
- 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 the CSU for any losses it may suffer as a result of the participant’s participation in the activity.
- A medical consent in which the participant agrees to be responsible for his/her own medical expenses that may result.