Waiver and Release FAQ:
WHAT ARE WAIVERS AND RELEASES?
Waivers and/or releases of liability (“releases”) are legal agreements designed to transfer responsibility for injuries and property damage from one party to another. A properly administered release may protect RSCCD and its employees from legal liability for injuries that occur to students or other individuals who participate in district 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 RSCCD 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 District 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.
SHOULD MEMBERS OF THE PUBLIC WHO PARTICIPATE IN CAMPUS SPONSORED ACTIVITIES BE REQUIRED TO SIGN RELEASES?
Members of the public who participate in any Campus 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.
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?
Case law in California defines how releases should be printed, including their layout and font size. (12-point font recommended.) 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.
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.
DOES THE RELEASE HAVE TO PROVIDE SPECIFIC INFORMATIONABOUT 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 volunteers and approved by the Board are covered under the district’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 Campus 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 must still be authorized by Risk Management to drive on a Campus sponsored activity.
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 District responsible for any loss that may result from participation in the activity.
• An indemnification where the participant agrees to pay the District 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.
CAN WE COMBINE THE ELEMENTS OF A RELEASE IN ONE DOCUMENT?
Yes. The ideal model for a release of liability contains as many of the ‘elements’ as necessary to deal with the situation.
WHAT IS THE RECOMMENDED LANGUAGE FOR A “RELEASE OF LIABILITY” CLAUSE?
As a sample, the following language meets certain situations requiring a release.
“In consideration for being allowed to participate in this Activity, I release from liability and waive my right to sue Rancho Santiago Community College District, their employees, officers, volunteers and agents (collectively “District”) from any and all claims, including claims of the District’s negligence, resulting in any physical injury, illness (including death) or economic loss I may suffer or which may result from my participation in this Activity, travel to and from the Activity (including air travel), or any events incidental to this Activity”.
WHAT IS THE RECOMMENDED LANGUAGE FOR AN “EXPRESSED ASSUMTION OF RISK” CLAUSE?
As a sample, the following language meets certain situations requiring an assumption of risk.
“I am voluntarily participating in this Activity. I understand that there are risks associated with my participation in this Activity, such as physical and/or psychological injury, pain, suffering, illness, disfigurement, temporary or permanent disability, death or economic loss. These injuries or outcomes may arise from my own or other’s actions, inactions, or negligence, or the condition of the Activity location (s) or facility (ies). Nonetheless, I assume all risks of my participation in this Activity, whether known or unknown to me, including travel to and from the Activity (including air travel) or any events incidental to this Activity.”
WHAT IS THE RECOMMENDED LANGUAGE FOR A “HOLD HARMLESS” CLAUSE?
As a sample, the following language meets certain situations requiring a hold harmless.
“I agree to hold the District harmless from any and all claims, loss or damage to my personal property, liabilities and costs, including attorney’s fees, as a result of my participation in this Activity, including travel to and from the Activity (including air travel) or any events incidental to this Activity. If the District incurs any of these types of expenses, I agree to reimburse the District.”
WHAT IS THE RECOMMENDED LANGUAGE FOR AN “UNDERSTANDING AND ACKNOWLEDGEMENT” CLAUSE?
As a sample, the following language meets certain situations requiring an “understanding and acknowledgement” of risk.
“ I have read this document, and I am signing it freely. I understand the legal consequences of signing this document, including (a) releasing the District from all liability, (b) waiving my right to sue the District, (c) and assuming all risks of participating in this Activity, including travel to and from the Activity (including air travel) or any events incidental to this Activity.
WHAT IS THE RECOMMENDED LANGUAGE FOR A “MEDICAL CONSENT” CLAUSE?
As a sample, the following language meets certain situations requiring a “medical consent.”
“If I need medical treatment as a result of my participation in this Activity, travel to and from the Activity (including air travel), or any events incidental to this Activity, I agree to be financially responsible for any costs incurred as a result of such treatment. I am aware that the District does not provide health insurance for me and that I should carry my own health insurance.”
WHAT IS THE RECOMMENDED LANGUAGE WHEN A MINOR IS INVOLVED?
As a sample, the following language meets certain situations requiring consent by a parent or legal guardian.
“I am the parent or legal guardian of the Participant. I have read this document, and I am signing it freely. I understand the legal consequences of signing this document, including (a) releasing the District from all liability on my and the Participant’s behalf, (b) waiving my and the Participants’ right to sue the District, (c) and assuming all risks of Participant’s participation in this Activity, including travel to and from the Activity (including air travel) or any events incidental to this Activity. I allow the Participant to participate in this Activity. I understand that I am responsible for the obligations and acts of the Participant as described in this document. I agree to be bound by the terms of this document.”