Submission Date:
Question:
My hometown library has implemented a fitness waiver for their movement and exercise activity programs. I am wondering if this is a good idea for my library. We provide some exercise classes including chair yoga, Zumba, nature walks, and are looking into another movement class activity. For reference, please copy and paste the form used by my hometown library [redacted for anonymity] into your browser or refer to the attached screenshot. Are we within our legal/ethical practices to implement such a waiver? Will we need to consult an attorney to draw up the waiver for a fee, or can we borrow the language used by [redacted for anonymity]? Thank you.
Answer:
I have a lot of fun-loving clients. Here are some examples of activities I've created liability waivers for:
- Mechanical bull riding
- Smashing a car with a sledgehammer for charity
- A "ToughMudder" event
- Sword fighting
I have also worked on liability waivers for more commonplace activities like attending a hockey game, horseback riding, and cheerleading.[1]
The purpose of a liability waiver is to limit a person's ability to bring legal action for injuries related to a particular activity. Therefore, the trick to creating a successful waiver is making sure it is enforceable when a worst-case scenario--an injury related to that particular activity--occurs.
Because of the high stakes--and because the law in New York can have an impact on how much liability can be waived (for instance, a waiver of liability at certain types of pools[2] is invalid, no matter how well-written) -- a waiver should almost always be custom-crafted to the actual activity, at a specific place, and thus not borrowed from another entity.
The waiver for the mechanical bull rider was different from the waiver for the hockey spectator.
The waver for the person venting their rage on a car for charity was different from the waiver for an equestrian.
The waiver for the sword fighter actually had more in common with the waiver for the cheerleader than you might think...but was still different.
Add to this diversity the fact that in New York, the waiver for a municipal library might have to look different from one used by another municipal library, or an association library, and there are a lot of variables to consider.
So, my answer to the question "Will we need to consult an attorney to draw up the waiver for a fee?" is: if your library wants assurance that the waiver actually protects the library from liability, then YES.
But wait, there's more.
I appreciate that for a not-for-profit such as a library, which likely doesn't have a budget to go around hiring lawyers to hand-craft waivers for every separate fitness activity (or if it does, would rather spend that money on materials and programming), bringing in a lawyer every time you want to sponsor a new physical fitness event can be cost-prohibitive.
So here are a few options between commissioning a new waiver for every fitness event, and just scrapping such events in the first place.
Solution 1: Pass the risk of liability on to the instructor
Any physical fitness class being offered by a library should be led by an instructor with the documented qualifications and insurance coverage to limit and cover the risk of injury related to the activity.
For a yoga class, this means the instructor should be able to show they 1) are certified by an acknowledged yoga authority; 2) are willing to accept responsibility for injury caused by their yoga class, and 3) have insurance that will cover such injury (whether the person sues the instructor, or the library, or both).
A contract showing all this will 1) recite the instructor's qualifications; 2) list their insurance (and attach a certificate showing the coverage; and 3) include a "hold harmless" and "indemnification." That means that if there is a claim of liability resulting from the classes, the instructor's insurance coverage will take the heat.
Such an instructor will, usually, have their own waiver that they require participants to sign, tailored to the precise activity. Further, to most experienced instructors, none of this will be an outlandish requirement.
Does this mean that start-ups and amateur instructors might not be able to offer classes at your library? Yes...and while it may seem harsh, that is a good thing. If a person is great at yoga and loves sharing what they've learned, but doesn't have the documented credentials to assure the library that they know how to teach it, or insurance coverage, they should not be selected to offer a fitness class by your library.
The public attending a fitness class will trust that the library has picked the right person; having the ability to demonstrate a bona fide qualification and insurance is a key sign you've made the right selection.
Solution 2: Work with your insurance carrier
Your library likely has some form of general premises liability coverage.[3] This means that an insurance carrier, on an annual basis, is sending your library a copy of an insurance policy--and the library is paying for it.
Aside from your board and employees, you know who doesn't want your library to get sued for an injury that happens during a fitness activity? Your insurance carrier.
Now, what I am about to write may, or may not, be helpful. In my experience, some insurance carriers will bend over backwards to make sure their "insured" doesn't get sued; they will offer training on risk management, they will offer employee screenings, and they will offer to review forms and policies. Other carriers, on the other hand, will just accept a check for your library's annual premium, and wish you "good luck" with liability.
When your library is contemplating any physical event with a moderate risk (yes, like Zumba), it is a good idea to check in with the insurance carrier for the library. Do they have waivers they want you to use (even if your instructor has held you harmless)? Do they have rules they require you to post (even if the rules are pretty obvious)? Is there an exception in your coverage (does it not cover fitness classes at all)? All of this is critical to know before your library takes on any risk for a program.
And who knows...I've actually had clients get the "all clear" from insurance carriers, who confirm "Yes, that is within the scope of your coverage, let the Zumba commence!" It all depends on what's in the policy.
Solution 3: "One-Waiver-Fits-Most"
With a "one-waiver-fits-most" solution, an organization identifies a suite of low-risk activities, and asks that their lawyer write "one waiver to rule them all,"[4] and only offer that type of activity...saving costly custom waivers for riskier (and likely rarer) activities.
What is "low risk" activity? That is up to your lawyer, insurance carrier, and library. But it in general a "low-risk" activity is one so low-key and mundane, with no heightened or specific risk, that an enforceable waiver covering it wouldn't require any special bells and whistles.[5]
Common examples of such "low risk" activities might include:
- Nature walks in a town or city park
- Organized bike ride in public park
- Local history walking tour
- Breathing or mindfulness class
- Croquette, badminton, tennis, Wii[6]
Although they might seem low-risk, I would generally exclude from this list:
- Yoga (including chair yoga)
- Dance class
- Any contact sports
- Organized bike ride on public streets
- Anything involving children running
THESE ARE JUST EXAMPLES...each library's list of "low risk" activities to be conducted with a "one-size-fits-most" waiver will change based on the library's type, level of insurance, and tolerance for risk.[7]
While not perfect, the "one-size-fits-most" solution is a cost-effective way to confidently offer programs from a menu of activities, while also protecting the library and not blowing the budget on legal services.
To ask a lawyer to write a "one-size-fits-all" waiver for your library, gather:
- your insurance policies
- code of conduct
- list of typical activities
- any grants funding the activities
- Lease (if your library doesn't own the building)
Be ready to meet for maybe half an hour with the lawyer to discuss the fitness events that your library wants to host. For municipal libraries, be ready to involve the town/village/city attorney at either the beginning, or the end, since depending on building ownership, and some other factors, the municipality may need to have some input on this too.
Mix that all together, and you should get:
- a list of "low risk" activities,
- a "one-size-fits-most" waiver;
- some guidance on when you need an instructor contract;
- instructions on how low to save signed waivers[8],
- and a sense of reduced-liability confidence.
Happy Zumba!
[1] Cheerleading may be common, but it is fraught with risk! P.S. NCAA: it should be considered a sport.
[2] New York Consolidated Laws, General Obligations Law - GOB § 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable
[3] In my work with libraries, I have found this is not always the case. One important annual task for trustees is to ensure that the library has adequate insurance.
[4] In writing. Always confirm legal advice in writing.
[5] An example of a "bell and whistle" would be the specific warning: "horseback riding is inherently dangerous")
[6] Unless played the way my family plays, in which case, there is not enough insurance in the WORLD.
[7] Although I am willing to bet croquette is on the "low-risk" list state-wide.
[8] Yes, they can be signed and/or archived electronically, but confirm the method with the drafting attorney.
Tag:
Liability, Library Programming and Events, Municipal Libraries, Public Libraries, Safety
