RELEASE CHECKLIST: What MUST your Release contain to workPosted: May 1, 2018
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 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.
First make sure your state or the states you operate in allow the use of a release. See States that do not Support the Use of a Release. Then check to see if any of the states you operate in or are based allow a parent to sign away a minor’s right to sue. See States that allow a parent to sign away a minor’s right to sue.
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 must identify who is to be protected by the release and who the release applies to. 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 are 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 can Assume 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
Breach of Covenant of Good Faith
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.
If you have been following this website and reading these posts, you understand you need to have an attorney write your release. That attorney must:
- Understand Release law in your state or the states where you operate.
- Understand your business and operation
- Understand the risks you and your guests undertake.
- Understand the people you are marketing too, to make them guests.
- Make sure nothing in your marketing voids your release.
Nothing in your marketing program should invalidate your release. Does your marketing create liability not covered in your release? Is your marketing directed to the correct people that your release was written for?
When you write your release with your attorney, make sure it is going to work for you.
What do you think? Leave a comment.
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