Releases/Waivers: The basics, the very basics!Posted: September 26, 2008
1. A waiver cannot be written by anyone other than an attorney. Sure you can try and write one but you are just wasting paper, or killing trees. Waivers or releases must meet the specific legal needs and requirements of your state, your activity and numerous other issues. See Releases 101.
2. Some states require the use of “magic words” to make the waiver enforceable. Without those words you are back to killing trees. See What is a Release?.
3. You release must make sure that the correct law and the correct location are identified so the release is valid. See States that do not Support the Use of a Release.
4. After that the issues that require a waiver to be correct still go on. The legal terminology for who is going to be protected by the release. The correct terminology for who is going to be prevented from suing in the release is critical.
5. At the same time, your release cannot be written in legalese in many jurisdictions.
6. Your release must be checked every year to make sure it is up to date. Each year a judge someplace decides to tweak or in some cases totally change how state law applies to releases. If you are in the state where that occurs you MUST know and make changes. SeeStates that do not Support the Use of a Release.
7. Are you clients under the age of 18? That is sets up more requirements for writing a release. See States that allow a parent to sign away a minor’s right to sue.
These are but seven of hundreds of issues that must be covered for a waiver to be upheld in a court of law. There is no easy checklist of items to cover. Each state is different, each activity is different. As an example there are 50 states, and several territories, with equine liability acts. No one release will work in many of the other states. Add into that mix skiing statutes, whitewater rafting statutes and you are all ready at hundreds of different requirements that must be met for different statutes. See What is a Release?.
You can’t write your own release unless you just want to waste paper.