Every time someone comes to your business or every time they sign up again they should sign a release. This time it got rid of a major problem.Posted: March 19, 2012
Releases work for future injuries and for injuries that may have all ready occurred.
This is a case where as part of the employment at a ski area, the family of the employee was able to get season passes. A requirement for the season pass was to sign a release.
In this case, the plaintiff was injured skiing on a season pass issued to the family member of an employee. The plaintiff sued the ski resort for his injuries. After the lawsuit had commenced but before trial, the plaintiff got another season pass and signed another release. The second release language was sufficient to stop the lawsuit.
The release was called a post injury release now because it stopped a lawsuit after the injury. Normally, I discuss pre-injury releases. Pre-Injury releases are releases that are signed in case someone is injured in a negligent manner.
Summary of the case
After it was discovered the plaintiff had signed a second release, the defense moved to amend their answer and filed a motion for summary judgment. The trial court granted the motion to amend and add the defense of release and accord and satisfaction. The plaintiff appealed.
“Release” is an affirmative defense. An affirmative defense is one that must be plead immediately in the answer of the defendant or the defense is waived. Release as a defense means that the parties have executed an agreement that releases the defendant from any claims.
“Accord and Satisfaction” are also an affirmative defense. Accord and Satisfaction means the party have come to an agreement, an accord and resolved their differences to the satisfaction of all parties.
The plaintiff argued that the post injury release was unconscionable. The contract should not be enforced because of:
“….inadequacies, such as age, literacy, lack of sophistication, hidden or unduly complex contract terms, bargaining tactics, and the particular setting existing during the contract formation process.”
An unconscionable contract or a contract of adhesion is one that the terms were offered on a take or leave it basis the terms are unjust to the point the court cannot allow the contract to stand. The contract must be so bad as to shock the conscience of the court. However, the contract cannot just be bad to one party.
Here, there are several factors that would not make the contract unconscionable. The contract is not for a necessary service. The services could be received from the same party in other ways. (Instead of signing a release and getting a season pass, the plaintiff could have purchased daily lift tickets and not signed a release.) The services were available from other providers.
The court found there were no coercion, duress, fraud or “sharp practices” by the defendant. The agreement did not change the duty of care nor did it “incentivize negligence.” Each of the contracting parties gained or gave away something of value.
So Now What?
Here the defendant was lucky. The plaintiff unknowingly signed a release to get his season pass that had the language necessary to stop a claim that had already occurred. There are two important points to bring up from this case.
1 Make sure your release has language to top future claims and past claims.
2. Every single time have every single-person sign a release. Get a new season pass, you sign the release again. Go rafting again, you sign the release. Buy another widget sign the release.
You just never know when a release from the future may stop a claim from the past.
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