States that do not Support the Use of a Release.
Posted: March 27, 2019 Filed under: Release (pre-injury contract not to sue) | Tags: Release, Validity Leave a commentThese states do not allow a recreational business or program to use a release to stop litigation. Assumption of the risk is your best defense in these states.
| State |
Citation |
Issues/Article |
| Releases are Void | ||
| Louisiana | 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. |
| Montana | MCA § 27-1-701
A new statute has been passed, § 27-1-753. Limitation on liability in sport or recreational opportunity. However it has not been tested in court and is very weak. |
Liability for negligence as well as willful acts. Except as otherwise provided by law, everyone is responsible not only for the results of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has willfully or by want of ordinary care brought the injury upon himself. |
| Virginia | Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890) | Except for Equine Activities Chapter 62. Equine Activity Liability § 3.2-6202. Liability limited; liability actions prohibited |
| Oregon | Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994 | Oregon Supreme Court finds release signed at ski area is void as a violation of public policy. |
| Use of a Release is Restricted | ||
| Arizona | Phelps v. Firebird Raceway, Inc., 2005 Ariz. LEXIS 53 | |
| 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 |
State created Equine Liability Statute so no need for release |
| West Virginia | Kyriazis v. University of West Virginia; 192 W. Va. 60; 450 S.E.2d 649; 1994 W. Va. LEXIS 161 |
|
| Use of Releases is Probably Void | ||
| 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 |
|
| Mississippi | Turnbough v. Ladner, 754 So. 2d 467; 1999 Miss. LEXIS 375 | Mississippi Supreme Court makes it almost impossible to write a release that is enforceable because the court does not give direction as to what it wants. |
| Wisconsin | Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 | Wisconsin decision has left the status of release law in Wisconsin in jeopardy |
| Wisconsin | Roberts v. T.H.E. Insurance Company, et al., 2016 WI 20; 2016 Wisc. LEXIS 121 | Wisconsin Supreme Court voids another release because it violates public policy. Public Policy as defined in Wisconsin requires the ability to bargain before signing the release. |
| Vermont | Dalury v. S-K-I, Ltd, 164 Vt 329; 670 A.2d 795; 1995 Vt. Lexis 127 | |
| Specific uses of Releases are Void | ||
| 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. |
| 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 |
| New York | General Obligation Law § 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable | 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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