RELEASE (Waiver) CHECKLIST: What MUST your Release contain to workPosted: February 14, 2018 Filed under: Release (pre-injury contract not to sue) | Tags: Assumption of the Risk Parent, Checklist, Jurisdiction, Minor, minor child, Release, Venue, Wavier 3 Comments
If you are getting ready for your summer recreation business 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 your release is doing more than wasting paper.
Not all of these clauses mentioned in the checklist may be needed. However, some of them are critical and they may all be modified based on your activity, program, employees, and ability to undertake the risks. Some changes are always needed based on your activities, your guests and the state or local you are working in.
I’ve divided this checklist into three major parts:
- Required for your Release to be Valid: What is absolutely required
- Needed: What you should have for your release to be valid in most states
- What Your Release Cannot Have: What you should never have in your document
There are some subsections also that are fairly self-explanatory. This will probably not be in all releases, but may be required in your release based on what you are trying to accomplish or what you are doing.
Required for your Release to be Valid
Contract: A release is a contract. The legal requirements required in your state for your electronic or piece of paper release to be a contract.
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? Courts want to see that the guest knew they were giving up some legal rights.
Parties: You have to identify who is to be protected by the release and who the release applies too. That means the correct legal names as well as any business name.
Assumption of Risk Language: Does your release contain language that explains the risk of the activities the release is designed to protect litigation against. This is any area that is growing in release law.
Agreement to Assume Risks: Do your release have language that states the signor agrees to assume the risk. Assumption of the Risk is the second defense after your release in stopping a lawsuit.
Magic Word: Negligence: Does your release have the signor give up their right to sue for negligence? The required language and how it must be explained is getting more specific in all states and yet is different in most states.
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. For a contract to be valid it must have a signature, or if electronic acknowledgment.
Continuing Duty to Inform: Information to complete the continuing duty to inform for manufacturers
Items that may be Needed Dependent upon the Purpose of the Release
Parental Release: Signature of Parent or Guardian AND correct legal language signing away a minor’s right to sue.
Statement the Signor has conveyed the necessary information to minor child
Statement the Signor will continue to convey necessary information to a minor child
Reference to any Required Statute
Signor has viewed the Website
Signor has viewed the Videos
Signor has read the additional information
Notice the Release is a 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
Signor is Capable of Assuming Risks
Risks identified that are not normally Not Associated with Activity
Drug & Alcohol Statement
Company Right to Eject/Refuse
Signor is in Good Physical Condition
Able to Undertake the activity
Good Mental Condition
Release Protects Against
Lost Personal Property
Loss of Life
First party costs
Third party costs
Enforceability of the Release Post Activity
Language Dependent on How the Release is to be Used
Product Liability Language
Release of Confidential Medical Information
Rental Agreement Clause
SAR & Medical Issues
Permission to release medical information
Waiver of medical confidentiality
Waiver of HIV status
Items I include in the releases I write
How Release is to be interpreted
Statement as to Insurance
Signor has Adequate Insurance
Incidental issues covered
Signor has Previous Experience
Signor Read and Understood the Contract
Agreement that the document has been read
Agreement that the signor agrees to the terms
What Your Release Cannot Have
Places to Initial: This just requires more effort on your staff to check and is not legally required.
Small Print: If a judge can’t read it, then it does not exist.
Attempting to Hide your Release: You attempt to hide your release; the judge will act like he or she never found it. The below are all examples of attempting to hide a release.
No heading or indication of the legal nature
Release Hidden within another document
Important sections with no heading or not bolded: No hiding your release
Multiple pages that are not associated with each other: splitting up your release is hiding it.
No indication or notice of the rights the signor is giving up: Some day the statement I did not understand it will resonate with a judge. This prevents that.
Most Importantly, had your Release 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? The law concerning releases is changing constantly, more now than ever before. In the past two years I’ve made a dozen tweaks to how I write a release based on those legal changes. If your release has not been updated, you may no longer have a release.
Remember: Nothing in your marketing program invalidates your release. Does your marketing not create liability not covered in your release? Is your marketing directed to the correct people that your release was written for?
We call the clause which attempts to ask a participant to give up their right to sue the suicide clause as in most cases, it tends to only inflame judges. Asking someone to give up the right to sue in this country is almost like asking them to give up their right to bear arms and can be one of the quickest way is to get a release form dismissed
You are correct in many states. However it depends on the state in several. California courts have come down hard on them.
That is what a release is. It is a a contract that says by signing this you are giving up your right to sue. So in 43 states it works.