There is a variety of circumstances that would dictate that someone write a letter of waiver. Such a letter is typically used to relieve one party of a particular type of liability. In writing a letter of waiver, it is important to first acknowledge that a particular risk exists and then disclaim any rights to hold the intended party liable for any harm flowing from that particular risk. Even if you follow those instructions, however, a court may not enforce the waiver of liability if the harm suffered is due to the negligence of that intended party or enforcement of the waiver would be against public policy.
The first step in writing an effective letter of waiver is to acknowledge the risk that is the source of potential harm. By acknowledging the risk, it is implied that the waiver of liability is done knowingly, which is a necessity for enforcement. For example, if the letter of waiver is being written for membership to a gym, the acknowledgment may state “I acknowledge the inherent risk of personal injury stemming from the use of workout equipment.”
The other necessary item in a letter of waiver is an explicit waiver of any liability from any harm that may occur due to the acknowledged risk. It is important to not only explicitly state the type of harm, but to identify the party for whom you are seeking to disclaim liability. Continuing the previous example regarding the gym membership, the waiver may state “I hold harmless The Gym for any personal injury I may suffer from the use of The Gym’s workout equipment.” All that is required beyond that is a signature of the person who is waiving the right to hold the other party liable.
Though the letter of waiver may contain all of the above and may otherwise be completely valid, it may not be enforced in every situation. For example, if a member of a gym who signed a similar waiver injures himself or herself on a piece of equipment that was negligently maintained, the waiver of liability may not apply. The reason for this is that it was not the normal use of the equipment that resulted in the member’s injury. Rather, it was the negligent upkeep by the establishment that was the direct cause of his or her injury.
Furthermore, some situations render the enforcement of such a waiver to be against public policy and thus are not enforced by courts. One such example is a patient entering surgery waiving the right to any potential malpractice claim against the surgeon stemming from the surgery. Though it may depend on the jurisdiction’s rules, it is unlikely that a court would enforce such an agreement as it would minimize the importance of diligence in health care.