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Escape Room Liability Waivers - The Definitive Guide (and downloads)

Escape Room

Contents

What is an escape room waiver?

You know that piece of paper they make you sign every time you go into an escape room, have a massage or even jump out of a plane? The one which you know you should read properly - you suspect in the small print you're signing your soul to the devil - but you don't as you just want to get on with the activity? That's the liability waiver. And it's actually really important.

You've spent months or even years designing and building your own escape room. Do you really need to bother getting all your customers to sign a waiver? Why interrupt them when they're itching to get on with the activity? Why bother spending the time and effort yourself working on 'paperwork' when you can spend that making the room better and focusing on marketing to bring in more customers?

Here we explain why waivers are important, we go through all the components of a standard escape room liability waiver and provide a sample.

(a little waiver of our own - we aren't lawyers and please don't take our word as legal advice)

What is the purpose of the waiver

The waiver has two main purposes:

  • To make sure the customer is informed of any risks and responsibilities.
  • To make sure your liability is protected in case of something going wrong.

Often things that may seem obvious to you as an escape room owner are not so obvious to your customers. That fire alarm on the wall? It's a real fire alarm, not part of the puzzle! And in playing your escape room the customer is taking certain risks - for example that one participant falls over another participant.

To be able to make an educated decision to partake in your escape room, customers should be aware of the risks they're taking, their responsibilities (for example to listen to your staff) and what's the situation should the worst happen, for example who is responsible for paying any medical bills?

As long as I look after my customers, do I still need a waiver?

It may seem common-sense that as long as you don't intend to harm your customers and you follow all safety regulations, you shouldn't be liable in case of any issues. However a little introduction to tort law is due here. A tort is if you do something wrong that causes a claimant to suffer loss or harm, for example personal injury or distress, loss of property or invasion of privacy.

There are three main types of liability:

  1. Strict liability. This is what most people think of when someone mentions "liability." If you are found to be at fault, then you will be held liable, regardless of any circumstances, for example a zoo owner would be liable if a dangerous animal escapes.
  2. Negligence liability. In most cases of negligence, you are only held liable if you are proven to have not met the standard of care. Basically, if you are found to not have done everything reasonable to prevent an accident, then you will be held liable.
  3. Gross neglicence. This is usually a failure to sort out a problem after it has already been reported - for example if a customer reports a smell of gas but the staff doesn't do anything about it. Negligence implies a duty of care - however as an escape room owner you have a duty of care over all your customers.

So even if you don't intend to harm your customers and follow all regulations, you may still be liable - as an extreme example if you follow all fire regulations, then proceed to set the escape room on fire, the fact that you followed all the regulations is no defense! Laws and regulations are not intended to be fully comprehensive. It's therefore still important to protect yourself. In addition, even if you're extremely careful, go above and beyond what's expected of you, and would win a case in the event of a non-fault accident, a waiver can prevent the case from reaching court in the first place (alongside all the associated fees and uncertainty).

A well crafted waiver will provide protection being liable for neglicence.

How will a waiver protect me?

Having a customer sign a waiver means that you can demonstrate that they have been informed of any risks and their obligations, and can serve as proof that they have voluntarily assumed the risk involved. In addition it can in certain circumstances provide limits to the amount of compensation a customer is entitled to in case damage or loss.

It can also protect against more pedestrian situation - what if a customer decides that they don't like your room half way through, and wants to leave? Are they entitled to their money back?

How enforceable are waivers? Are they bullet-proof?

Waivers are not designed to remove full liability, rather they are designed to provide a degree of protection. The degree of protection they provide depends on how they are drafted, general expectations around the activity, and the particular laws in your jurisdiction, which differ by country and by state. However there is a case history of waivers standing up in court and reducing liability either partly or completely.

To provide further protection they can be combined with liability insurance, where in exchange for your insurance premium an insurer will pay towards compensation claims and legal costs. In this case the insurer will usually require that all customers sign a waiver, and will also stipulate that particular clauses are included within the waiver.

What are the components of an escape room waiver?

Hold harmless clause

A hold harmless clause is a clause in which both parties agree that one of them, the 'accepting party', won't seek legal action against the other party, the 'promising party'. The validity of hold harmless clauses differs by jurisdiction, but note that they can generally only be enforced if legal and fair. The opposite of hold harmless is 'indemnity' - so sometimes waivers are called 'indemnity waivers' because holding harmless is waiving away any rights to indemnity.

If there are any risks that can be fleshed out in any detail, that should be done here - such as loud sounds, flashing lights/strobes, etc.

Jurisdiction

Which particular area's laws and courts is the waiver being created under?

Right to stop game

A clause giving the staff right to stop the game if any of the players mis-behave, or are under the influencer of drugs or alcohol.

COVID clause

Explaining what hygiene measures have been taking to stop the spread of COVID, and that the escape room is not responsible should there be any spread of COVID within the room.

Media

If you are going to take any photos of videos of customers then you should obtain consent for their use - for example if you're going to use them in marketing materials (which could even just include posting on your Facebook wall)

Medical Treatment

Should a customer need medical treatment, are you authorised to obtain the care? And who is on the hook for any costs? (particularly important in the US)

Personal Information

The waiver needs to include enough information that a court could determine who signed it and when they signed it - and it may seem obvious, but don't miss the signature itself!

Partial Invalidity

It's a good idea to have a clause that states that if part of the waiver isn't legally valid then it doesn't invalidate the rest of the waiver. Hopefully this wouldn't be necessary, but the whole idea of the waiver is to reduce risk.

Parent or Guardian

If the customer is under-18, then they're not yet old enough to be able to legally sign a contract. This is mitigated by having the parent or guardian sign the waiver too. They also need to provide enough information that a court could determine who signed it and when they signed it.

Gotchas

It's important to make sure that the waiver is properly drafted - they need to be clear to your customers and with legally correct language. Though you can download a template waiver online (including here) our recommendation is that you get a waiver customized written by a lawyer who has a solid knowledge both of your industry and the laws in your jurisdiction.

Don't bury waivers away. A waiver will have more validity if the customer is told explicitly what it is and signs it, rather than behind a T&Cs checkbox during a website purchase process

A waiver doesn't mean that you don't need to maintain a safe playing environment. Just like having a car insurance isn't a license to be reckless with how you treat your car, having signed waivers doesn't remove your responsibility to the safety and wellbeing of your customers. Courts can find you at fault even with a signed waiver.

There is a misconception that the broader a waiver and the more scenarios it covers, the better. Many court cases have contradicted this, and demonstrated a greater chance of a waiver being valid the more specific it is.

Collecting waivers

Traditionally waivers have been kept on paper, involving keeping a stock of empty waivers, having participants fill them in and sign them physically and then physical storage. This has several downsides:

  • Having to keep a stock of empty waivers
  • Having them filled in on-site takes precious time away from and takes the user out of the flow of the experience. They're there to have fun escaping a room, not to fill paperwork.
  • Manually make sure that the entire waiver form has been filled in
  • Finding a particular filled-in waiver when it's needed can be difficult, and if it can't be found then the entire point of collecting waivers is defeated

These points can all be solved with speedyWaiver electronic waiver software, which provides flexibility to:

  • Have your customers sign their waivers from home before they come, or
  • Have your customers sign at a tablet kiosk at your establishment, or
  • Have your customers sign their waivers on their phone when they arrive, using a QR code

speedyWaiver also ensures your waivers are stored permanently in a vault and has many features such as being able to automatically e-mail your customers a PDF copy of their waiver and being able to run analytics on waiver responses.

Example waivers

Here are some escape room waivers that we've found around the Internet:

USA:

Canada:

UK:

New Zealand:

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