The Ins and Outs of Hold Harmless Agreements and Liability Waivers

Q: what is a hold harmless agreement and how does it work?

a hold harmless agreement is a legal document where you promise not to sue someone if you get hurt during an activity or service. the agreement works by moving the legal responsibility from the business to you, the person participating in the activity. these agreements are super common at places like gyms or adventure parks, and they can also be used at places where you rent equipment or property.

Q: when can someone ignore a signed hold harmless agreement?

a hold harmless agreement becomes worthless if the business or person requiring it was extremely careless or did something dangerous on purpose. this, called gross negligence, means they knew something was dangerous but ignored it anyway. you can also ignore the agreement if someone lied to you about the risks, if they did something illegal, or if your state has laws that don't allow these agreements in certain situations.

Q: what should i look for before signing a hold harmless agreement?

you should make sure the agreement clearly explains what risks you're taking and for which activities it covers. a good agreement will list specific dangers like "risk of drowning, broken bones, or equipment failure" instead of just saying "any injury." check that the document is easy to understand and doesn't have blank spaces that could be filled in later. the agreement should focus on normal accidents that might happen, not on covering up serious mistakes or intentional harm.

Q: do hold harmless agreements work the same way in every state?

no, different states have very different rules about these agreements. some states are much stricter about when they can be used and what they can cover. other states might allow the agreements but have special rules about how they must be written or presented. california is particularly strict and won't enforce agreements that try to protect businesses from gross negligence. before you rely on any hold harmless agreement, it's important to understand what your state allows, especially if you're a business owner trying to protect yourself.

Q: can parents sign hold harmless agreements for their kids?

parents can sign these agreements for their children, but courts are much more likely to question and throw them out. the law is extra protective of kids, because they can't fully understand risks the way adults can. even when parents sign waivers for their kids, courts will still look very carefully at whether the activity was appropriate for children and whether the business took proper safety steps. many businesses that work with children will still ask parents to sign waivers, but they also carry extra insurance and take additional safety precautions because they know the waivers might not hold up in court if something serious happens.

Q: what's the difference between ordinary negligence and gross negligence in these agreements?

ordinary negligence includes everyday mistakes or accidents that happen even when people are trying to be careful. gross negligence is much worse, because it's when someone knows something is dangerous but ignores it or demonstrates lack of concern for safety. waivers almost never protect against gross negligence because the law considers it too serious to excuse.

Q: should i get a lawyer to write my hold harmless agreement?

yes, you should definitely have a lawyer write or review your hold harmless agreement, especially if you're a business owner. these documents need to be written very carefully to actually work when you need them, and a lawyer who knows your state's laws can make sure your agreement includes all the right language and follows local rules. you can also use a template, but we still recommend having a lawyer go over it, just in case.

How a liability waiver works

A liability waiver is a document your clients sign to indicate they understand all the possible risks involved in entering your premises or using your services. If your business offers kayak tours, for example, risks might include drowning, injury, hypothermia, sunburn, exposure, getting lost, and so on.

The waiver provides complete notice of all the possible scenarios of what could go wrong so that clients can provide knowledgeable consent to participate. By signing the waiver, the customer acknowledges they received notice, they know what could happen, and they won't hold you responsible should something go wrong.

Liability waiver validity

Hold harmless agreements are not always valid, so it is important to work with an attorney or liability waiver template when creating yours. Situations where such documents may not be valid include:

If your state prohibits them, whether completely or in some situations
If the agreement is against public interest, such as a liability waiver from an airline, where it is not in the public interest to protect an airline from liability that could result from a crash or accident

Negligence and waivers

Even if you have your customers sign a liability waiver, it won't protect you if your business is grossly negligent, although it may protect you in most circumstances against ordinary negligence.

Negligence means a failure by your business to take the reasonable care a reasonable person in a similar situation would take. Ordinary negligence is often unintentional and caused by oversight. For example, if your staff is unaware of spilled water on the floor of your gym and a member slips and falls, a waiver would most likely protect you.

Gross negligence is an extreme indifference or disregard for the safety of others, such as not providing a lifeguard at your gym's pool and someone drowns. In this instance, a waiver would not protect you.

How to create a liability waiver

You can create a separate liability waiver or insert a liability waiver clause into a contract. Both options are valid.

The waiver should:

List the names and addresses of the parties.
Give the date of the agreement and how long it is in effect for.
List the location of the event or activity.
Describe the activity or event the customer is going to participate in.
List the possible risks and injuries. It should use the words "death and dismemberment" for complete coverage and should also include all risks "known and unknown."
Be large enough print for someone to actually read.
Use clear and unambiguous language.
Be presented individually to each person, not as a group document everyone signs.
Include consideration, which makes it a legally binding contract. To do this, start the agreement with the words, "In consideration for being allowed to participate."
Release you from negligence to the full extent permitted by law and not attempt to protect you from gross negligence.
Include a signature from the client.

Although there are ready-made HHAs available online, they may not work in all jurisdictions or situations. To ensure your document provides you the best protection possible, be sure to consult with an attorney.

FAQs about hold harmless agreements

What is a hold harmless agreement and how does it work?

A hold harmless agreement is a legal document where you promise not to sue someone if you get hurt during an activity or service. The agreement works by moving the legal responsibility from the business to you, the person participating in the activity. These agreements are super common at places like gyms or adventure parks, and they can also be used at places where you rent equipment or property.

When can someone ignore a signed hold harmless agreement?

A hold harmless agreement becomes worthless if the business or person requiring it was extremely careless or did something dangerous on purpose. This, called gross negligence, means they knew something was dangerous but ignored it anyway. You can also ignore the agreement if someone lied to you about the risks, if they did something illegal, or if your state has laws that don't allow these agreements in certain situations.

What should I look for before signing a hold harmless agreement?

You should make sure the agreement clearly explains what risks you're taking and for which activities it covers. A good agreement will list specific dangers like "risk of drowning, broken bones, or equipment failure" instead of just saying "any injury." Check that the document is easy to understand and doesn't have blank spaces that could be filled in later. The agreement should focus on normal accidents that might happen, not on covering up serious mistakes or intentional harm.

Do hold harmless agreements work the same way in every state?

No, different states have very different rules about these agreements. Some states are much stricter about when they can be used and what they can cover. Other states might allow the agreements but have special rules about how they must be written or presented. California is particularly strict and won't enforce agreements that try to protect businesses from gross negligence. Before you rely on any hold harmless agreement, it's important to understand what your state allows, especially if you're a business owner trying to protect yourself.

Can parents sign hold harmless agreements for their kids?

Parents can sign these agreements for their children, but courts are much more likely to question and throw them out. The law is extra protective of kids, because they can't fully understand risks the way adults can. Even when parents sign waivers for their kids, courts will still look very carefully at whether the activity was appropriate for children and whether the business took proper safety steps. Many businesses that work with children will still ask parents to sign waivers, but they also carry extra insurance and take additional safety precautions because they know the waivers might not hold up in court if something serious happens.

What's the difference between ordinary negligence and gross negligence in these agreements?

Ordinary negligence includes everyday mistakes or accidents that happen even when people are trying to be careful. Gross negligence is much worse, because it's when someone knows something is dangerous but ignores it or demonstrates lack of concern for safety. Waivers almost never protect against gross negligence because the law considers it too serious to excuse.

Should I get a lawyer to write my hold harmless agreement?

Yes, you should definitely have a lawyer write or review your hold harmless agreement, especially if you're a business owner. These documents need to be written very carefully to actually work when you need them, and a lawyer who knows your state's laws can make sure your agreement includes all the right language and follows local rules. You can also use a template, but we still recommend having a lawyer go over it, just in case.

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