If you want to avoid the danger of something negative resulting from pursuing an activity, the safest action is…..don’t pursue the activity. Of course, choosing that option is impractical, unrealistic and boring. The quality of our lives is highly affected by how we choose to spend our time. Any activity involves a chance that a loss could occur:
- A pick-up basketball game could result in a broken ankle when attempting a sweet move on the floor
- A tennis match could include your collision with a partner’s backhand swing
- A hike through a forest path may end with a stumble down an incline and a broken leg
- A twirl on the dance floor could include tripping on a chair and falling, ending up with a back injury
- A game of catch comes to a halt with a ball sailing over a glove and through a neighbor’s window
- A canoe rental could end up with a drowning
The key is to be aware of risks and to take steps to minimize them. One method that tries to decrease the likelihood of being sued involves hold harmless agreements.
Hold harmless agreements are typically in writing and involve a first party agreeing not to take legal action (sue) against another party. In exchange for this promise, the second party agrees to permit the first party to engage in a given activity.
These agreements can come in many forms. They can be separate contracts or, often, they are statements added to other contracts. They are also called different names, such as disclaimers or waivers. Schools use them in permission slips for student trips or activities, including team or individual sports. Youth sports leagues use them, vendors who rent recreational equipment use them, and plenty of businesses make such agreements part of their operations.
There are a number of issues to keep in mind with such agreements including:
- Are they necessary
- Are they enforceable (state laws often control this issue)
- Are they valid (if not worded properly, they may be useless or may have unintended consequences)
- Are they fair (this depends on the level and nature of risk involved)
- Are they part of a business or strictly a non-business transaction
In some cases, it may make a lot of sense to use a valid hold harmless agreement. In others, one may have to make a decision whether a given activity is worth giving up that important right to hold another party responsible for serious injury or substantial damage to property. Be aware that it may not be valid to hold another party harmless on behalf of a child. Some states hold that a child’s right is separate from a parent’s and a parent may not legally waive that right.
Having fun and staying active involves risks and it’s important to be aware of which ones you’re assuming when you pursue those activities. Be careful with the agreements you make.