Caleb Meriwether, Haven Insurance Partners, visits with Dan Reaves, host of ‘The Dan Reaves Show,’ today, and each Wednesday at 3:30 p.m., to discuss all things insurance.
Many Tennessee business owners believe that a signed waiver completely shields them from liability. While waivers can reduce your risk, they are not a substitute for insurance. In reality, waivers are a defense you might raise after a lawsuit is filed—not an automatic guarantee of immunity.
Let’s look at what makes a waiver enforceable, when it fails, and why you still need a solid insurance program in place.
- What Makes a Waiver “Acceptable” Under Tennessee Law
Tennessee courts generally uphold waivers and releases of liability if they meet these key standards:
- Clear and unambiguous language – The document must plainly state that the participant understands and accepts the risks involved and agrees not to hold your business liable for injuries. Courts reject vague or overly broad language.
- Voluntary and informed consent – The participant must have had a real opportunity to read and understand the waiver before signing—no surprises or rushed check-in lines.
- No violation of public policy – Tennessee law does not permit waivers to excuse reckless or intentional conduct. A waiver can only protect against ordinary negligence.
- Specificity – The waiver must clearly identify the business, the nature of the activity, and the risks involved. Generic or reused waivers often fail because they lack that detail.
- When Waivers Fail to Protect You
Even a well-drafted waiver will not cover every situation. Common exceptions include:
Gross Negligence or Intentional Acts
Tennessee law draws a sharp distinction between ordinary negligence—simple carelessness—and gross negligence, which is a reckless disregard for the safety of others.
- Ordinary negligence might involve forgetting to warn a visitor of a small step.
- Gross negligence could mean ignoring a known dangerous animal, skipping required maintenance, or operating equipment in an obviously unsafe manner.
A waiver cannot protect you from claims involving gross negligence, recklessness, or intentional harm. Courts consider those acts so egregious that allowing a waiver to cover them would violate public policy.
Minor’s Claims
Waivers signed on behalf of minors are particularly weak. Under Tennessee law, a parent or guardian cannot permanently waive a child’s right to sue for personal injury.
Even if a parent signs a waiver, the minor can later file a claim—and they generally have until one year after turning 18 to do so (see below). That means a claim could be filed years after the incident occurred, long after your memory or records fade. This is one of the biggest reasons insurance remains critical.
Statute of Limitations (SOL)
In Tennessee, most personal injury claims must be filed within one year of the injury date (Tenn. Code Ann. § 28-3-104).
However:
- For minors, the one-year clock does not start running until they turn 18.
- For property damage, the SOL is typically three years.
- For contract-related disputes, including waiver enforceability, the SOL can extend up to six years.
These extended time frames mean that even if an incident seems long resolved, your business could still face a lawsuit later—again, underscoring the importance of ongoing insurance coverage.
Third-Party and Unrelated Claims
A waiver signed by your participant won’t protect you if someone else—like a bystander, employee, or another customer—gets hurt and files a claim. Waivers also don’t cover property damage or product liability unless specifically included.
- Why You Still Need Insurance
Even the strongest waiver program should always be backed by active insurance policies. Here’s why:
- Defense Costs
Your waiver might help you win—but only after you’ve hired a lawyer, filed motions, and possibly gone to trial.
A general liability or professional liability policy covers these defense costs, even if the claim is groundless.
- Claims Outside the Waiver
Not every incident is tied to the activity covered by your waiver. A delivery driver’s fall on your premises, storm damage, or employee injury all fall outside its scope. That’s where property, workers’ compensation, and commercial general liability policies protect you.
- Regulatory and Contractual Requirements
Landlords, lenders, and clients often require proof of insurance—regardless of waivers. Insurance coverage is also a sign of sound business operations, helping you secure contracts and partnerships.
- The Smart Approach: Layered Risk Management
The best risk management strategy combines three layers:
- Well-Drafted Waivers – Reviewed by counsel, tailored to the specific activity, and renewed as your business changes.
- Strong Insurance Coverage – General liability, professional liability, workers’ compensation, and umbrella policies as appropriate.
- Proactive Safety Protocols – Staff training, signage, and regular maintenance all help prevent incidents and strengthen your defense.
Final Thought
A waiver may help you avoid liability in theory—but insurance keeps you in business in practice.
In Tennessee, the courts take a balanced approach: they’ll enforce fair waivers but not at the expense of public safety or fairness. A comprehensive insurance policy remains the most reliable protection against the unexpected.
