When I was a practicing California personal injury attorney I was always amazed by how quick people are to sue. I handled cases where people wanted thousands of dollars in damages for something as silly as tripping over a clothes hanger. Fortunately, there has not been a lot of litigation in the escape room industry to date, but I fear it is only a matter of time. An expensive lawsuit could put an escape room out of business, so I recommend proactively doing everything you can to protect yourself from liability.
Baby-Proof Your Rooms!
Some players are like little children—they want to touch EVERYTHING, and in some cases put things in their mouths! Escape room staff need to be prepared by making sure the room is as safe as possible. For example, covering dangerous (and likely non-game related) objects, such as electrical outlets, with clear “Do Not Touch” symbols. Make sure all props are in their proper place, and are not loose/defective/broken. Even something as simple as a nail sticking out of a wall could be harmful when players are frantically yanking pictures off a wall without paying proper attention.
Employ Attentive Game Managers!
Game managers who are actively watching/listening to what is going on in the room can frequently protect players from hazards/themselves. For example, if they hear players say something like “maybe we should climb up to the ceiling to look for clues” the GM can promptly intervene. In addition, GM’s can keep an eye out for child players, intoxicated players, or other players who are more likely to hurt themselves.
No matter how careful you are, accidents can still happen. You should seriously consider investing in general liability insurance to make sure that your business is covered for accidents.
Make Players Sign a Waiver/Disclaimer!
Many will argue that waivers are un-enforceable in court, and in many cases and jurisdictions that is correct. Judges throw out waivers for a variety of reasons, including but not limited to the following:
- Ambiguous terms. Waivers must be clear, easy to read, and easily understood by a regular person.
- Illegal provisions. There are some behaviours you cannot preemptively excuse, and it is illegal to ask someone to waive certain rights. As such, you should include statements like “I hereby release Escape Room X from negligence to the fullest extent permitted by law.”
- Contracts of adhesion and/or uneven bargaining power. Players may argue that they were forced to sign the contract in order to play and did not have time to consult with an attorney to fully understand its terms.
- Lack of consideration. Contracts must always be a bargained for exchange involving something of value. In the escape room context, consider a statement like “In consideration of being allowed to participate…”
It is very important that you have a well-drafted waiver that complies will all the legal requirements in your particular jurisdiction. You can certainly start with a waiver template (like our EscapeAssist one) but you should have all waivers looked over by a local attorney before implementing them.
Even if a waiver does not prevent a lawsuit, it can certainly be used as a legal defense. You can argue that you clearly laid out potential risks of playing your escape game, and the player voluntarily assumed those risks. The assumption of the risk defense places some of the responsibility on the player (to take care for their own safety), and will hopefully decrease the amount of damages they are awarded.
Finally, lawsuits aside, waivers are helpful purely as a scare tactic. At a minimum, they encourage players to take the game more seriously, be aware of their surroundings, and have concern for their own safety.