Releases 101

Several years ago Justin R. Melat of the Colorado Springs law firm of Melat, Pressman, Ezell & Higbie, LLP sent a letter to Representative Mark Larson of the Colorado Legislation asking him if he would sponsor a bill eliminating the uses of releases in Colorado. Accompanying the letter was a copy of a page from Trial Talk, the Plaintiff’s bar newsletter. The Trial Talk letter was from Eric Leaper who decried the use of releases in outdoor recreation programs. Eric Leaper has testified several times on behalf of Plaintiffs in whitewater cases.

The injury that prompted the letter was a church group from Kansas who lost a leader while whitewater rafting in Colorado. The facts as set forth in the letter are as follows: As Church Group stepped off the bus to enter the boats they were handed a release. They were told Colorado law required that they sign a release. The boat captain had 2 weeks experience. The boat flipped and the Chaperone died.

I have not been able to verify the death or the incidence; however, the facts are not that different from similar incidents in the past.

The law firm emphasized the trips were pre-arranged and pre-paid as well as non-refundable. The letter then explored common law that did not allow the release of a future tort. The final paragraph of the letter is well written:

“Future releases are especially inappropriate and damaging to Colorado’s tourism, when there is no prior warning of the requirement. A simple statute declaring releases of “future” negligence that is negligence not yet committed to be void, as a matter of public policy would allow the law to operate smoothly and cases to be settled and releases given for negligence past, as it always has been.”

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A quick review of where the outfitter acted in a way to increase his chances of being sued, based on the law firms letter is in order here.

• The Outfitter did not communicate the release to the group before they arrived in Colorado.
  

  Releases must be given to clients with the opportunity to read, understand, sign and/or reject them. Handing out releases at the put-in is a great way to have a court void a release. It does not give the person the necessary opportunity to read and understand the release.
  
  Many times this is done so customers will not quit a trip. This attitude leads to litigation. A person who does not sign the release is a great person for any outdoor recreational activity. Those are people who read and understand your release and make a decision not to go on the trip. That person should be thanked, have there money cheerfully refunded and helped to their car. They are the ones who are going to sue you in the future if they are forced to undertake a trip because they could not get their money back.
  
  I would love to see an outfitter defend him or herself in court when sued for a refund. The little lady on the stand would state she did not understand what whitewater rafting was and when she saw the river and heard the safety talk, she was too afraid to go on the trip. Then the big mean outfitter did not give her money back. Every judge in Colorado would land on that outfitter with both feet and a money extracting judgment.
  

If you are not refunding clients money after they have read and understood your release form, you deserve to be sued and go out of business. You should always refund money if someone, after reading the release, looking at the rock or seeing the river, decides they do not want to take the trip.

• By not sending the releases in advance, the releases are worthless pieces of paper against any action by an injured or deceased youth.
  

This was a youth trip. People under the age of 18 cannot contract away their legal rights. This entire action was an exercise in wasted paper by the outfitter because most of the people on the trip would have the release thrown out by the court immediately.

By only providing the release forms at the put in, the outfitter ignored the only real chance at using an effective release, having the parents sign the form. As such, the only person who could have the form used against them was the only person who died.

Here again, the fears of losing a client made the outfitter think in a way that might have lost him is business. There are many old proverbs that prove this thinking process is defective. You would think they would not need repeating in the 90’s.

• Release forms should be provided to the customer as soon as possible.
  

As soon as you know about a person, coming to your business, you should provide them with a copy of your release. Besides saving time and money on the day the trip departs, this allows participants, parents and leaders to honestly evaluate the risk of the trip and made the decision as to whether they want to undertake the activity.

This also increases the chances that your release documents will effectively stop some of the possible litigation. If one parent signs, then there is one less person to sue you if a minor is hurt or injured.

Brochures and marketing information should tell future customers that they will be required to sign a release. A marketing program should also inform customers that they outfitter is not responsible for lost property or any injury they receive. Be honest and up front in your documents and you save a lot of hassles later.

The releases can be collected rather than signed at any point along the way. People knowledgeable about the release are answering questions about the release, rather than a guide who may misinterpret the legal document. (Remember statements by your guides can void your release.)

• The outfitter lied to their customers with the statement that Colorado law required the release. (Duress)

The fear of having a customer refuse to sign a release made a liar out of the outfitter. If the Plaintiff’s attorney had realized this, he probably could have voided the release and sued the outfitter. The outfitter would be labeled a liar. There is no Colorado law requiring the use of a release.

Don’t lie to customers. Don’t inflate or deflate the risk of the activities. I enjoy brochures for the Arkansas River advertising river sections one full class above their historical rating. This is an easy way to prove that anything an outfitter may say on the stand is a lie. They lied to customers in their brochure, what is stopping them from lying o the stand.

Second, the heirs of the deceased person could have claimed the release was signed under duress. Duress is being forced to sign a document. Having not right to a refund and being forced to sign a release because the law requires it, when it in fact does not require it may be enough to support a defense of duress.

Fact Summary:

This story relates examples that should have gone the way of the bell-bottom pants and the disco. However, like the disco, which is returning as much as a joke as a fad, these operations still exist. This outfitter should be encouraged to attend state and national meetings to learn the latest in properly handling clients. The numerous mistakes made which the heirs and their attorneys missed took a big chunk out of the outfitters “luck” box. The next time the heirs may find a sharper attorney.

Conclusion

If Eric Leaper’s letter is in Trial Talk, this could be a major war for the outfitting industry. Trial Talk is a highly respective magazine that encourages and supports Plaintiff’s lawsuits. By subscribing you learn the latest and greatest new plaintiffs and ways to win lawsuits. Eric has been making money as an expert witness for the Plaintiffs over the past several years. His letter does a good job of weaving different ideas and legal theories into a plausible argument. Several interesting quotes from his letter are set forth here:

“We are concerned about the present lack of accountability of commercial rafting companies and other outdoor outfitters in Colorado.”

“But we often see outfitters sending inexperienced “first season” guides into hard whitewater rapids with inadequate equipment.”

“The use of these release forms is fraud. As you know, they are unlawful in other states.”

“At present, the outfitter business in Colorado is untrustworthy, to put it mildly.”

“There are organizations of experienced river runners and conservationists (such as our organization” and there are outfitter trade organizations. But there is no organization of outfitter customers. Trial Lawyers are their only advocates. Therefore, we would urge you to thoroughly demonstrate that these dangerous rafting practices violate national standards and that these all-encompassing release forms are fraudulent.”

If Mr. Leaper’s statements were true, then this set of facts would have allowed the Plaintiffs to sue successfully. Colorado state law specifically sets forth that outfitters must use safe equipment. If use of a release is fraudulent, then the release is void.

There are several lessons to be learned from these letters and the facts surrounding this case. Don’t make these mistakes.

More importantly, find out what you Colorado legislator is doing and whether he received one of these letters. Start now to prepare for another battle to eliminate releases in Colorado.

Originally published December 1999 in the Outdoor Recreation Law Newsletter

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