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Think your release will survive a lawsuit? Test your Release and Find out.

 Simple test to determine if your release is sufficient to meet the legal issues you face.

Let me know your scores?  Email them to me at Jim@Rec-Law.us

RELEASE CHECKLIST

If you are getting ready for your summer recreation season it is always a good idea to make sure your paperwork is up to date and ready to go. This is a checklist to help you check your release and make sure it is ready to go for your season.

Not all of these clauses may be needed.  However, some of them are critical and they should all be modified based on your activity, program, employees, and ability to undertake the risks.

Required for your Release to be Valid

Each Check is worth -3 points

     ___ Contract: The legal requirements for a contract are met if the release is signed. Both parties understand what the contract is and what it means.

___ Updated Recently: Has your release been reviewed by an attorney in the past year or do you work with an attorney that updates you on changes you need to make to your release?

___ Notice of Legal Document: Does your release someplace on its face, give notice to the person signing it that they are signing a release or a legal document?

          Notice of Legal Consequence: Does your release state there may be legal consequences to the signor upon signing?

___ Parties: You have to identify who is to be protected by the release and who the release applies too.

___ Assumption of Risk Language: Does your release contain language that explains the risk of the activities the release is designed to protect litigation against.

___ Agreement to Assume Risks: Do your release have language that states the signor agrees to assume the risk

___ Magic Word: Negligence: Does your release have the signor give up their right to sue for your negligence?

___ Plain Language: Is the release written so that it can be understood? Is it written in plain English?

___ Venue: Does your release have a Venue Clause?

___ Jurisdiction: Does your release have a Jurisdiction Clause?

___ Signatures: Does your release have a place for the signor to date and sign the release

___ Adequate Typeface: Typeface is large enough to read.

___ Readable: Release is not confusing, but is readable.

___ Nothing in your marketing program invalidates your release.

___ Information to complete the continuing duty to inform

 

Total Score:    _________________ our of 48

However if you don’t have all of these your score may not matter. The above issues are critical in any release!

 

Items that may be Needed Dependent upon the Purpose of the Release

Each Check is worth -2 point

___ Parental Release

___ Product Liability Language

___ Release of Confidential Medical Information

___ Signor has viewed the Website

___ Signor has viewed the Videos

___ Signor has read the information

___ Signor has conveyed the necessary information to minor child

___ Reference to required Statute

___ Alternative Resolution

___      Arbitration

___      Mediation

___ Demo Language

___      Understand use of Equipment

         ___ Accept Equipment As Is

___      Agree to ask questions about Equipment

         ___ Understand Demo Equipment has more Risk

___ Rental Language

Total Score:    _______________ out of 34

 

Needed

Each Check is worth -1 point

___ Notice of Legal Document:

___   Notice of Legal Consequence: Does your release state there may be legal consequences to the signor upon signing?

___ Opening/Introduction: Does your release have an opening or introduction explaining its purpose

___ Assumption of Risk Language

         ___ Minor Injuries Noticed

         ___ Major Injuries Noticed

___   Death

___   Mental Trauma

___ Risks Not Associated with Activity

         ___ Required Statutory Notice

         ___ List Not Exclusive/ Exhaustive

___ Agreement to Assume Risks

         ___ Capable of Assuming Risks

___ Lost Personal Property

___ Drug & Alcohol Statement

___ Company Right to Eject/Refuse

___ Good Physical Condition

         ___ Able to Undertake

         ___ Good Mental Condition

___ Magic Word: Negligence

              ___ All Magic Words

___ Protects Against

         ___ Lost Money

         ___ Lost Time

         ___ Loss of Life

         ___ Medical Bills

         ___ Injuries

___ Indemnification Clause

         ___ Parent/Child

         ___ Spouse/Spouse

         ___ SAR

         ___ Medical Evacuation

___ Parties

         ___ Legal Entity

         ___ Employees

         ___ Officers/Directors

         ___ Agents

         ___ Volunteers

         ___ Other Participants

         ___ Other Parties

___ Participant Parties

         ___ Participant

         ___ Participant Spouse

         ___ Participant Children

         ___ Participant Heirs

___ Plain Language

___ Alternative Resolution

         ___ Arbitration

         ___ Mediation

 

___ Venue

         ___ In the US

         ___ Out of the US

___ Jurisdiction

___ Indemnification

         ___ Third party costs

         ___ First party costs

___ Severance Clause

___ How Release is to be interpreted

___ Liquidated Damages

         ___ Breach of Covenant of Good Faith

___ Misc. Clauses

___      Severance Clause

         ___ Enforceability post Trip

         ___ Copy as good as original

         ___ Photo Release

___ Adequate Insurance

___ Medical Release

         ___ Medical Transportation

         ___ Permission to release medical information

         ___ Waiver of medical confidentiality

         ___ Waiver of HIV status

___ Statement as to Insurance

___ Incidental issues covered

___ Previous Experience

___ Medical Condition

___ Read and Understood

___ Signatures

         ___ Participant Signature

         ___ Both Parent Signatures

         ___ Child Signature

___ Medical Insurance information

___ Overall Review

___ Plain Language:         Readability Level ________

___ Adequate Typeface: Typeface Size _________

___ Readable

___ Release language in Plain English

     ___ Agreement that the document has been read

___ Agreement that the signor agrees to the terms

 

Total Score:    ____________________ out of 89

 

What Your Release Cannot Have

Each Check is MINU 5 Points

___ Places to Initial

___ Small Print

___ No heading or indication of the legal nature

___ No indication or notice of the rights the signor is giving up

___ Release Hidden within another document

___ Important sections with no heading or not bolded

___ Multiple pages that are not associated with each other

 

Total Score:    ________________________

 

 

Possible Score

Score

Score First Group

48

 

Score Second Group

34

 

Score Third Group

89

 

Minus Score from the 4th Group

-35

 

Total

 

 

 

Scoring:

Possible Score

Rating

150 – 171

Excellent You are Probably Good to Go

120 – 149

Running on the Edge, the old “You may want to get that looked at….”

Below 119

Quit killing trees for no purpose, your release sucks

 

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Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

 

Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

By Recreation Law    Rec-law@recreation-law.com         James H. Moss

 

 

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Release, Waiver, Release Checklist, Getting Ready for the season,

 

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2 Comments on “Think your release will survive a lawsuit? Test your Release and Find out.”

  1. John Fisher says:

    Jim,

    First let me congratulate you on a truly excellent blog you have created and maintain. I look forward to receipt of your blog and frequently find that there is a least one nugget of information I can use.

    I do have a question about your most recent article titled, “Think your release will survive a lawsuit?” I think you have left no stone unturned in this article and think that it can serve as a roadmap for anyone interested in drafting or evaluating releases.

    My question comes from near the end of this article. Under the heading “What Your Release Cannot Have,” your first point is “Places to Initial.” I’m wondering what the basis is of including that prohibition? While you certainly wouldn’t want to have only initials, what is the problem with having a participant initial each page of a multiple page release (hopefully no more than a front-and-back document), or even each paragraph to indicate that they at least saw and had the opportunity to read each paragraph?

    I also want to tell you that I absolutely love your article titled “10 Signs of Great Risk Management” – again, this is an excellent list that should serve as the basis of almost any risk management plan, not just those dealing with outdoor recreational operations.

    Thanks for sharing your insight so freely!

    Like

    • Great question. thank you for the question and the compliments. Let me answer you question with a question (and I promise to supply my answers).

      A. What happens if there is a spot that is not initialed?

      B. What is required to have a valid release?

      I’ve seen only one case where the court even commented on “spots initialed.” Court said all initials were there nothing more. I think when you have 40 people ready to go rafting and a 20 year old person collecting money and releases you have a perfect opportunity for someone to miss a spot that is supposed to be initialed. It is hard for someone to turn a page over check all initials are present, check for a signature and compare that signature to the credit card being offered when a lot of people are waiting.

      I’ve never seen a court rule on a spot not initialed, however I guaranty it is an opportunity to the plaintiff to take you to trial. Any mistake what so ever allows motions for summary judgment to be denied. For a motion for summary judgment to be denied there only needs to be some issue that is in dispute in the facts (generally). Does the lack of an initial negate the release or that section of the release would be enough I think to have the motion for summary judgment dismissed and the case proceed to trial.

      Courts always say if you sign the document you have read and agreed to the document. (You should also put language like that in the release.) An initial does not provide any more legal basis or proof than a signature at the bottom of the page. Therefore you are at best duplicating efforts. However an initial is not a signature. You only need one, not both. “Your honor they signed the document.” Is all your need for the entire document to be accepted. Initialing does nothing legally and I believe only provides an opportunity for the plaintiff to argue.

      A. Motion for summary judgment is denied. The section not initialed was not approved by the signor of the document.

      B. A signature, nothing else.

      Thanks

      Jim

      Like