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States that allow a parent to sign away a minor’s right to sue

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute Restrictions
Alaska Alaska: Sec. 09.65.292 Sec. 05.45.120 does not allow using a release by ski areas for ski injuries
Arizona ARS § 12-553 Limited to Equine Activities
Colorado C.R.S. §§13-22-107
Florida Florida Statute § 744.301 (3) Florida statute that allows a parent to release a minor’s right to sue
Virginia Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited Allows a parent to sign a release for a minor for equine activities
Utah 78B-4-203.  Limitations on Liability for Equine and Livestock Activities Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.
 

By Case Law

California Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)
Florida Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 Allows a release signed by a parent to require arbitration of the minor’s claims
Florida Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147 Release can be used for volunteer activities and by government entities
Maryland BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897 Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.
Massachusetts Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384
Minnesota Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
North Dakota McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 North Dakota decision allows a parent to sign away a minor’s right to sue
Ohio Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998) Ohio Appellate decision upholds the use of a release for a minor for a commercial activity
Wisconsin Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1 However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state
 

On the Edge, but not enough to really rely on

Decisions are by the Federal District Courts and only preliminary motions
North Carolina Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741 North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations
New York DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695 New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue.

What do you think? Leave a comment.

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States that do not Support the Use of a Release

The most changes in this form have occurred in the last year over the last ten years.

Assumption of the risk is your best defense in these states

These states do not allow a recreational business or program to use a release to stop litigation.

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

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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States that do not Support the Use of a Release

Assumption of the risk is your best defense in these states

These states do not allow a recreational business or program to use a release to stop litigation.

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

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

 

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.

 

What do you think? Leave a comment.

Copyright 2010 -2016 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

 

 

 


States that do not Support the Use of a Release

Assumption of the risk is your best defense in these states

These states do not allow a recreational business or program to use a release to stop litigation.

State

Citation

Issues

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

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

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

 

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

 

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.

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

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.

 

What do you think? Leave a comment.

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Facebook Page: Outdoor Recreation & Adventure Travel Law

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States that allow a parent to sign away a minor’s right to sue

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute

Restrictions

Alaska

Alaska: Sec. 09.65.292

Sec. 05.45.120 does not allow using a release by ski areas for ski injuries

Arizona

ARS § 12-553

Limited to Equine Activities

Colorado

C.R.S. §§13-22-107

 

Florida

Florida Statute § 744.301 (3)

Florida statute that allows a parent to release a minor’s right to sue

Virginia

Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited

Allows a parent to sign a release for a minor for equine activities

Utah

78B-4-203.  Limitations on Liability for Equine and Livestock Activities

Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.

 

By Case Law

 

California

Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)

 

Florida

Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454

Allows a release signed by a parent to require arbitration of the minor’s claims

Florida

Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147

Release can be used for volunteer activities and by government entities

Massachusetts

Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384

 

Minnesota

Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299

 

North Dakota

McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3

 

Ohio

Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998)

 

Wisconsin

Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1

However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state

Maryland

BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897

Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.

 

On the Edge, but not enough to really rely on

 

North Carolina

Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741
Kelly , v. United States of America, 2014 U.S. Dist. LEXIS 135289

Ruling is by the Federal District Court and only a preliminary motion
And final decision dismissing the case

What do you think? Leave a comment.

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13th Annual Colorado Snow and Avalanche Workshop: If you are in the ski industry in the West you need to be here!

YOU ARE INVITED!

13th Annual Colorado Snow and Avalanche Workshop (CSAW)

English: I took this picture on May 2006, on m...

English: I took this picture on May 2006, on my way to Mount Everest base camp. Ilan Adler. (Photo credit: Wikipedia)

Friday October 17, 2014

8 a.m. – 5 p.m.

Breckenridge Riverwalk Center

150 West Adams Ave

Breckenridge, CO 80424

Tickets: http://tinyurl.com/csawtickets2014

Join the CAIC and Friends of CAIC in Breckenridge, Colorado for this year’s Colorado Snow and Avalanche Workshop.

We have invited speakers from around Colorado and as far as Montana, Canada, and Alaska. It’s going to be a great event and we would love to see you there. You can see the full schedule here: http://tinyurl.com/csaw2014.

Register before October 13th and save on the registration fee.

A powder snow avalanche

A powder snow avalanche (Photo credit: Wikipedia)

Also, don’t forget to book your hotel rooms. Beaver Run Resort is offering discounted rates for our attendees. Rooms can be booked by calling Beaver Run group reservations at 1-800-525-2253 and mentioning CAIC.

We are looking forward to another great CSAW!


Alaskan Supreme Court upholds releases for climbing gym and sets forth requirements on how releases will be upheld in AK

Decision points out what not to do in a release which has great information for everyone.

Donahue v. Ledgends, Inc., 2014 Alas. LEXIS 153 State

Plaintiff: Claire A. Donahue

Defendant: Ledgends, Inc. d/b/a Alaska Rock Gym

Plaintiff Claims: negligent failure to adequately train and supervise its instructors and violations of the Uniform Trade Practices and Consumer Protection Act (UTPA)

Defendant Defenses: release

Holding: for the defendant

Year: 2014

In three prior cases, the Alaskan Supreme Court had stated that releases were valid under Alaskan law; however, the releases in front of the court for review, failed for specific reasons. In this case, all the requirements to write a release according to the court were present.

The plaintiff in this case had decided that learning to climb was her next goal. The plaintiff’s second class was bouldering. At one point, she was 3-4’ off the ground and told to jump down by a gym instructor. The gym used mats for its landing padding. She jumped breaking her tibia in four places.

The plaintiff then sued the climbing gym for negligence and violation of the Uniform Trade Practices and Protection Act (UTPA). The trial court upheld the release and dismissed the claims of the plaintiff, and the plaintiff appealed.

Summary of the case

This case is full of interesting and useful information. I’ll tackle it by subject matter rather than the order the court goes through it.

UTPA

The UTPA as identified in Alaska can be found in some form in all states. It is a consumer protection statute to provide consumers with greater benefits and damages if they are ripped off by someone or a business. Most are called consumer protection acts. Alaska joined the majority of states and said that consumer protection statutes did not apply to personal injury claims. The court dismissed this claim.

Offer of Judgment

The court also looked at the offer of judgment made by the defendant and resulting attorney fees awarded to the defendants. In Colorado and Alaska and probably most states, if the defendant makes an offer of settlement or offer of judgment, they are stating we will give the plaintiff $XX in this amount, and the case ends. However, if the plaintiff does not win that amount or a percentage of that amount, then the defendant can be awarded attorney fees or a percentage of its attorney fees.

The statute has a two-prong approach. First, it eliminates a lot of lawsuits quite quickly when the damages are close enough to the offer made by the defendant to get the plaintiff to think. It also makes the plaintiff to do an honest evaluation of the amount of money they can realistically receive in a lawsuit.

Here the plaintiff did not recover any money so the defendant was awarded 20% of their attorney fees per the statute.

Relevant Facts of the Case

The actual facts are stated in the decision are important.

Donahue completed her first class on harnessed climbing on March 23, 2008, and returned for a second class on May 11. When class began she was told that the day’s focus would be on bouldering, or unharnessed climbing on low walls. She did not express any hesitation. She climbed for almost two hours, successfully ascending and descending a number of routes. During this time, she saw other people drop from the wall without injury. After another successful ascent at the end of the lesson, she felt unable to climb down using the available holds. Her feet were somewhere between three and four-and-a-half feet from the ground. Her instructor suggested that she drop to the mat and told her to be sure to bend her knees. Donahue landed awkwardly and broke her tibia in four places. She was attended to immediately by Rock Gym personnel and a physician who happened to be present.

The court pointed out several facts surrounding the case. The ones in favor of the defendant were:

There were signs posted around the gym warning of the dangers of climbing. The plaintiff had never climbed before, but she was a runner, cyclists, kite boarder and had worked as a commercial river guide in Colorado. The plaintiff testified that she understood the risks of the activities and felt competent to make decisions about that risk for herself.

The ones in favor of the plaintiff were: Advertising of the gym gave the impression to the plaintiff that learning with the defendant was a safe way to learn how to climb. The defendant had run ads in the newspaper that stated:

[T]the only safe place in town to hang out.

Trust us, it still exists. . . . [E]very child in your family will be reminded of what it’s all about — friends and fun.

[Y]ou have nothing to lose and everything to gain.

(Marketing makes promises that risk management must pay for?)

Analysis of Prior Release law by the Court

The court outlined the three reasons it had thrown out releases in three earlier cases. The first decision, a release was used as a defense to a claim by a passenger in a plane that crashed.

We ruled that “[i]ntent to release a party from liability for future negligence must be conspicuously and unequivocally expressed.” We also held that a release must use the word “negligence” to establish the required degree of clarity, something the release in Kissick did not do. Further, since liability for “death” was not specifically disclaimed and the term “injury” was ambiguous, we held that the release did not apply to claims for wrongful death, construing it against the drafter.

The second release was thrown out in a case involving driving all-terrain vehicles. The public policy argument was reviewed in this case, and the court found a recreational release did not violate public policy. The court did find, however:

We did decide, however, that the release did not conspicuously and unequivocally express an intent to release the defendants from liability for the cause of the exact injury that occurred — a rollover when the plaintiff drove over a big rock hidden in tall grass. The release covered the inherent risks of ATV riding, but we found that it also included “an implied and reasonable presumption that the course [was] not unreasonably dangerous.” We found there to be fact questions about whether “the course posed a risk beyond ordinary negligence related to the inherent risks of off-road ATV riding assumed by the release,” and we held that summary judgment for the defendants on the basis of the release was therefore, improper.

The third decision involved the same defendant as in the present case, Ledgends, Inc. In that case the plaintiff fell and her foot slipped through two floor mats injuring her.

…language in the release that was problematic because it was internally inconsistent: the release stated that the gym would try to keep its facilities safe and its equipment in good condition, but it simultaneously disclaimed liability for actions that failed to meet such standards.

This last issue is critical to review when writing a release. See below.

Requirements for a Release to be Valid under Alaskan law

The court then outlined the six things a release under Alaskan law must meet to be valid.

(1) the risk being waived must be specifically and clearly set forth (e.g. death, bodily injury, and property damage);

(2) a waiver of negligence must be specifically set forth using the word “negligence”;

(3) these factors must be brought home to the releasor in clear, emphasized language by using simple words and capital letters;

(4) the release must not violate public policy;

(5) if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so; and

(6) the release agreement must not represent or insinuate standards of safety or maintenance.

Simply put the requirements of a release in Alaska are simple clear and very precise. I would surmise that 90% of the releases written in the US would fail to meet one or more of the requirements required in Alaska.

A review of the specifics required by the court is educational.

1.       You can’t just have a one-paragraph release waiving negligence. Under Alaskan law, you have to list the possible risks. Here the court found the list describing what can happen to you in a climbing gym adequate. Falling is an obvious one for rock climbing but you probably also have to list rope burns, different ways you can fall, belayer issues as well as equipment failure.

You also cannot use one release to cover a multitude of risks anymore. The risks of rock climbing do not include drowning (outside of Thailand) which are a part of rafting. You will have to have a release for each group of risks to identify those risks.

2.      You have to have a release that releases the defendant from negligence. Alaska is not going to allow you to skirt the issue. Your release must use the word negligence and have the signor, sign away their right to sue for your negligent acts.

3.      The important language cannot be hidden, small type, etc. More importantly; the entire document must be a standalone document, and the releasing language set out, emphasized and capitalized.

Under Alaskan law, I would suspect that most “health club” releases found in the membership sign up may not meet these requirements. Those are documents were the majority of the language covers your promise to pay and there is a paragraph or two in the middle waiving any claims you may have.

(The language concerning payment allows the health club to sell the contract to a third party. The health club receives a fixed amount, usually about 50% of the total value immediately. The third party is then the one sending you the demand letter and trying to collect from you when you quit going to the club.)

4.      The release of liability language must be specific. This issue is similar to the first issue, but it requires specific action in the release. You must state you are not liable for negligence AND the risks you outline in the release and others. This requires you to have more than a simple negligence clause. Your negligence clause must be written to cover all aspects of the risk you are required to put in your release.

5.       The Fifth and Sixth requirements are similar. This is one I’ve been arguing for years. You can’t promise one thing and then not meet the promise. The court specifically stated you cannot say your state you follow a standard and then fail to meet that standard. (Sound familiar?)

If you say you follow the standards of the ACA, AEE, CWA or any other organization that writes standards for your activity you must meet those standards! You cannot say your equipment is kept up to date and then have shoddy equipment. You can’t say your employees are all trained in first aid and have a custodian who is not. No longer can you say you meet 80% of the standards or hope your release will get you out of those you don’t meet. If you state you meet the standards, yours or others, Alaska release law (contract law) states you must meet the standards.

If you marketing is making a promise that you fail to meet, in Alaska your release cannot get you out of failing to meet the promise. Whether or not this applies to advertising not found in the release will be interesting. However, I suspect if the plaintiff says I want to the defendant because their door said they meet the standards of ABC, and they failed to meet those standards; the defense in Alaska may not include a release.

The defendant was successful; the plaintiff’s claims were dismissed, and we have a decision providing an outline on how releases should be written in Alaska.

So Now What?

Many times in an effect to “soften” the way the release sounds to your clients you may make statements or promises in the release about how you or your equipment will operate or be maintained. In this decision, the court pointed out in its prior decision that those promises in a release will void the release if they are not kept.

There is no way to “soften” a release. Any time you do you are creating a contract with cross purposes. On one hand, you are attempting to prevent a lawsuit if someone is injured. On the other hand, you are promising that people won’t be injured. If you are promising someone won’t be injured why have the release? More importantly the courts have found that you can’t promise safety and when you fail to meet your promise, use the release to prevent the lawsuit over your promise.

A release is a contract. This court looked at the entire contract and found that promises in the contract were met. Promises in prior contracts that were not met voided the release.

This decision places stricter requirements on releases then in several other courts; however, the decision outlines how to be successful when writing a release in Alaska and all other states.

What do you think? Leave a comment.

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