States that do not Support the Use of a Release
Posted: December 16, 2010 Filed under: Arizona, Hawaii, Louisiana, Montana, Release (pre-injury contract not to sue), West Virginia | Tags: Duty of care, Insurance, Law, Liability insurance, Louisiana, Montana, Release, Virginia 9 CommentsAssumption of the risk is your best defense in these states
These states do not allow a recreational business or program to use a release to stop litigation.
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State |
Citation |
Issues |
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Releases are Void |
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C.C. Art. 2004 (2005) |
Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party. |
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MCA § 27-1-702 |
All contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law. |
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Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890) |
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Use of a Release is Restricted |
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Arizona |
Phelps v. Firebird Raceway, Inc., 2005 Ariz. LEXIS 53 |
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New Mexico |
Berlangieri v. Running Elk Corporation, 132 N.M. 332;2002 NMCA 60;48 P.3d 70;2002 N.M. App. 39;41 N.M. St. B. Bull. 25 |
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West Virginia |
Kyriazis v. University of West Virginia; 192 W. Va. 60; 450 S.E.2d 649; 1994 W. Va. LEXIS 161 |
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Use of Releases is Probably Void |
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Connecticut |
Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) and Reardon v. Windswept Farm, LLC, Et Al., 280 Conn. 153; 905 A.2d 1156; 2006 Conn. LEXIS 330 |
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Wisconsin |
Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 |
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Vermont |
Dalury v. S-K-I, Ltd, 164 Vt 329; 670 A.2d 795; 1995 Vt. Lexis 127 |
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Specific uses of Releases are Void |
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Alaska |
Sec. 05.45.120(a). Use of liability releases |
A ski area operator may not require a skier to sign an agreement releasing the ski area operator from liability in exchange for the right to ride a ski area tramway and ski in the ski area. A release that violates this subsection is void and may not be enforced. |
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Hawaii |
King v. CJM Country Stables, 315 F. Supp. 2d 1061, 2004 U.S. Dist. LEXIS 7511 (D. Haw. 2004) |
Found that Hawaii statute § 663-1.54. Recreational activity liability prevented the use of a release |
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New York |
Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable. |
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What do you think? Leave a comment.
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Recreation Law 
So I’m looking into creating a virtual ice skating coaching program however my worry is, do I have liability if someone who is using the virtual library of videos or meeting with a coach virtually gets hurt? Would a waiver protect me from getting in a legal battle? I want to know the risks involved since it would be virtual, rather than meeting in person with a coach.
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Yes you would have liability if something in your video was incorrect, or possibly you did not explain something clear enough that resulted in an injury to the person watching the video. However, if the video is free to use and with the right disclaimers, your liability would be slim to zero. If you are charging for the videos or making them for specific people, or people are paying a fee to access you and you are using the videos to teach, you would be liable.
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If the videos were free, your liability is about zero. If you are using the videos as part of training or instruction program that you charge for then you would have liability.
A release, if properly written would protect you from liability. The difficult issue is because the videos are created in one location and the person watching the video is in another, the jurisdiction and venue issues are very complicated. Possible to over come, just complicated.
Email me at jhmoss@gmail.com to learn more.
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Don’t all states allow parties to a contract to choose the law that applies to a contract? Why not, if you are in Montana or New Mexico, just stipulate in the release that Colorado law – which apparently does recognize releases as valid – applies to any disputes?
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1. Several states do not allow the use of a release. See States that do not Support the Use of a Release http://rec-law.us/25TFzFO
2. All states allow the parties to stipulate in a contract where a lawsuit will be held and what law will be applied. However, the location and law, venue and jurisdiction must have a relationship to the parties. That means, the lawsuit can be in the state where the accident occurred or where the defendant is served, where the plaintiff lives or in if enough contacts are made where the defendant lives or does business.
3. Naming a state that does not have a relationship with the parties will get the jurisdiction and venue clause thrown out. See Your Jurisdiction and Venue clause must be relevant to the possible location of the accident. Screw this up and you can void your release as occurred in this ski racing case. http://rec-law.us/2n4bfMh
So you just can’t move a release to a state that supports releases.
On top of that, the jurisdiction and venue clause is only valid if the contract that contains it is valid. So in your example the court would first decided if the contract, the release was valid. Under Montana law, it is not so the contract/release would be thrown out and thus the jurisdiction and venue clause would not apply.
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Just to extend the discussion a bit, I am a marital arts instructor. I would be in the same boat as the outdoor businesses. There is inherent risk in what we do. I’ve studied for more than 30 years, always with competent and careful instructors and caring partners. Yet, for all that, I’ve had a few moderate injuries, and have even seen a couple of people get broken bones (one, by his own fault, the other by a student finishing improperly).
In both of those cases, as well as my own injuries, there was literally nothing more the instructor (school owner) could have done to prevent the injury. Waivers, in addition to their legal and insurance purposes (we also can’t get insurance without them), also serve to remind students of the risk involved. Using a waiver may actually decrease the risk by raising awareness.
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Releasing liability for negligence violates sound public policy. Keep in mind that, in order to be liable, the victim of negligence must prove that the defendant acted unreasonably, creating an unreasonable risk of harm or death to the victim, which caused harm or death. Why should anyone ever be allowed to escape liability for unreasonably risky behavior that hurts another? Good businesses would not ask their customers to sign such releases – instead, they would implement proper training and policies to prevent harm or death to their customers so that they would not need a release of liability for their own fault. Asking a customer to sign a release as to intentional torts is outrageous, as it allows the defendant to intentionally harm or kill a customer without facing consequences – releases for intentional torts (which would include civil battery, such as shooting another with a gun intentionally) should not stand up in court and courts have and should strike them down.
Bottom line: responsible businesses do not ask their customers to release the business for responsibility for the business’s (and their employees’) FAULT that results in harm. Good businesses take care to avoid such harm, and own up to it if they are at fault and harm a customer.
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Thanks for responding. A Couple of things though.
1. You cannot release intentional acts. If the action giving rise to the injured client was actually done intentionally no release in any state stops the lawsuit.
Remember in the outdoors there are no skid marks, no crumple zones, no black boxes. The waive that flipped the boat may not be back the next day because the water level changes. So who was at fault when the boat flipped and the passenger was hurt. The company for running that day? There is no way to accurately measure the river flow and the government does that the way they want? The passenger who did not paddle has hard as she had earlier in the day which did not give the boat the power needed? Another passenger who paddled a lot harder than normal and moved the boat in a direction the guide could not correct at the last minute? The passenger because instead of grabbing the throw bag and being pulled back into the boat froze in the water which allowed them to be injured?
What about hiking in the woods and a branch falls on your partner’s head. Mother nature for allowing the branch to die and fall right at that moment? The Land manager of the 1000 acres of wood land that allows people to hike on the land? Yet there are a lawsuit about every month of this issue.
And at what cost. Insurance is difficult to find for these activities. In most cases there may only be 1 underwriter. So without a release, no one will insure the activity. Rafting will cost $10,000 a trip.
Running to a meeting. More later, but please respond.
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The main issue is you believe that a “good” business, which from your post seems to imply a moral issue with the legal realities of today. I do know that every time an outdoor recreation business has attempted not to use a release they were inundated with claims. NOLS was one example. Now they use a release.
What about a bug bite. Should the business be responsible for you getting bitten by a tick? It is your responsibility to wear bug deterrent or clothing that stops bites. If you fail to use bug protection and get Lyme disease should the business be liable to you? that is what a release can stop.
Many times a “good” (moral?) business has no choice but to use a release. It is a requirement for the business to secure insurance.
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