From time to time, members of the campus community and/or visitors (collectively referred to here as “participants”) may be exposed to certain risks by partaking in services offered by the University or participating in activities or events at the University. Based on the situation, it may be appropriate to provide some level of informative communication or warning or to obtain an acknowledgement or waiver related to the risks involved.
The following information is provided as general guidance for the campus community on the use of warnings. Specific questions about whether such a warning is appropriate for a given situation or requests for assistance in drafting an appropriate warning should be directed to the Office of the General Counsel at gcounsel@ucf.edu.
The warnings appropriate for different campus events and activities can be divided into three main types:
1. Disclaimer
What it is : A disclaimer serves to put the participant on notice of a condition or risk, and passively permits the participant to continue with knowledge of that condition or risk. Many disclaimers will also express that the property owner or the organizer of the event or activity is not responsible for anything that may happen to the participant or the participant’s property as a result of the condition or risk for which the participant is now on notice. Disclaimers are often quite specific and concise.
How to deliver : passive delivery via signage or other documentation
When to use : A disclaimer is generally appropriate for situations when participants may be exposed to certain risks but, because either the risks involved are relatively low or it is not practical to obtain sign off from the participant, acknowledgement or waiver is not suitable. Examples include disclaimers posted in a website footer or signage at a building’s entrance warning participants of the risks they may encounter as part of the service, activity, or event.
2. Acknowledgement/Assumption of Risk
What it is : An assumption of risk is a disclaimer in the sense that it serves to put the participant on notice of a condition or risk, generally by providing some concise information about the activity or event and the risk involved. Assumption of risk is based on the idea that a person who proceeds into a risk area or activity knowingly assumes the risk of that area or activity if the risk is open and obvious or the person has been put on notice of the risk. An assumption of risk may (but does not have to) specifically state that the participant has knowledge of that condition or risk and is actively deciding to proceed regardless of the risk. An assumption of risk sends a more powerful message when actively acknowledged, such by click through agreement, RSVP, or signature. An effective assumption of risk can be concise but will usually be more involved than a disclaimer.
How to deliver : passive delivery via documentation or minimal action required via sign off
When to use : An assumption of risk may be appropriate when the participant will be engaging in a low to moderately risky activity on campus. Typically, an assumption of risk will be incorporated with a disclaimer when passive delivery is necessary or as part of a release/waiver/indemnification agreement when sign off is possible.
3. Release/Waiver/Indemnification
What it is : A release/waiver/indemnification agreement is generally more comprehensive than either of the other two warning level documents. It will identify the parties, the activity or event, and against whom claims are being released. It will also typically include strong language about both the risk and the knowing relinquishment of potential legal claims arising out of injury or damage alleged to be due to that risk. A release/waiver document often includes assumption of risk language along with waiver language. Such documents should be signed (in hardcopy or electronically) by the participant. Where an event is using an online ticketing or RSVP system, a click-through form of assent is acceptable.
A key component of a release/waiver is a release of liability statement, which is a statement that the participant is releasing legal claims against identified persons and/or entities. Often, a release/waiver document will include an explicit covenant not to sue as part of the release of liability. While a release/waiver/indemnification agreement is more comprehensive than an assumption of risk, and therefore sometimes more complicated, that does not mean that the language can be hard to understand; all warning level documents should be drafted to be clear, using language that can be plainly understood.
How to deliver : active delivery with participant response/agreement and sign off required
When to use : A release/waiver/indemnification agreement is generally appropriate to use when participants will be engaging in a voluntary event or activity which has certain moderate to high level inherent risks beyond those they would generally be exposed to in the course of their daily lives. Examples include participation in intramural sports, use of gym equipment or heavy machinery, field trips, certain volunteer activities, challenge/ropes/obstacle courses, and races or other athletic events occurring on UCF premises.
If you believe such a release/waiver/indemnification agreement may be appropriate for your event or activity, please reach out to the Office of the General Counsel at gcounsel@ucf.edu to obtain an appropriate document and instructions for use.