Are your employees a liability?

A recent family vacation in Hawaii gave me a reason to think about liability waivers.

A recent family vacation in Hawaii gave me a reason to think about liability waivers.

What I thought was that, no matter how good your company’s liability waiver might be, your employees may be undermining its value.

Landing in Hawaii, we shuttled over to one of the car rental agencies to pick up our vehicle.

Inside, a friendly employee directed us over to one of the self-serve computer kiosks and proceeded to help us obtain our vehicle (one has to wonder what the point is of installing self-serve kiosks if you still have to pay an employee to assist the customers using them).

This friendly lady clicked rapidly through the various touch-sensitive screens and, seconds later, the registration process was completed.

The screens went by so quickly that we barely had a chance to see what they contained.

One, however, caught my eye in the nanosecond it was on display. It was the company’s Liability Waiver.

As it flashed past, my spouse and I gave each other a “Did you notice that?” sort of glance.

Moments later, we set off in our shiny, clean vehicle to explore the sights of Maui and never gave the waiver another thought.

I’ve previously called the liability waiver the Rodney Dangerfield of legal documents.

People rarely seem to read the documents they sign before engaging in a dangerous activity (like driving a rental car!) and they often outright scoff at the enforceability of the waiver’s contents.

I have heard more than one person say, “I didn’t read it, so it can’t be held against me.”

Like most generalities spouted about the workings of the law, this one is inaccurate most of the time.

The legal reality is there is a legal rule that parties may be bound by such a document, even if they haven’t read it.

There are, however, exceptions to this rule and companies which have customers routinely sign a liability waiver would be well-advised to understand their nuances.

The B.C. Supreme Court has ruled in the past that a party signing a document without reading it is bound by its terms, but there is a “reasonable notice” exception to that rule.

The exception is applicable only in certain special circumstances, including inducement to sign the document by fraud or misrepresentation and when the party relying on the waiver knew (or had reason to know) the signing party misunderstood the waiver’s terms.

The title of the document must sufficiently convey the scope of the waiver sought by the company.

It should alert the reader that he or she is signing a potentially wide-ranging document absolving the company of responsibility for injuries suffered through the use of its services or products.

The waiver’s text should not be ambiguous. Any ambiguity will tend to be construed against the company seeking the waiver’s protection.

Relying on a poorly worded, poorly titled, and poorly communicated waiver of liability is a fool’s endeavour.

If your business seeks the protection of a liability waiver, it might start by obtaining clear language of the extent of the waiver, using a title which conveys the significance of the content, and taking active steps to ensure it is brought to the customer’s attention.

In the case of the car rental agency, it may have executed the first two of those requirements quite well (who knows, since I never saw it).

But its employee’s failure on the third requirement virtually guaranteed the waiver would fail if the rental agency ever sought to rely upon it.

Robert Smithson is a labour and employment lawyer, and operates Smithson Employment Law in Kelowna. This subject matter is provided for general informational purposes only and is not intended as legal advice.

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