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Alaska Recreational Assumption of the Risk

ALASKA STATUTES

Title 9. Code of Civil Procedure.

Chapter 65. Actions, Immunities, Defenses, and Duties.

Go to the Alaska Code Archive Directory

Alaska Stat. § 09.65.290 (2017)

Sec. 09.65.290. Civil liability for sports or recreational activities.

(a) A person who participates in a sports or recreational activity assumes the inherent risks in that sports or recreational activity and is legally responsible for all injuries or death to the person or other persons and for all damage to property that results from the inherent risks in that sports or recreational activity.

(b) This section does not require a provider to eliminate, alter, or control the inherent risks within the particular sports or recreational activity that is provided.

(c) This section does not apply to a civil action based on the

(1) negligence of a provider if the negligence was the proximate cause of the injury, death, or damage; or

(2) design or manufacture of sports or recreational equipment or products or safety equipment used incidental to or required by a sports or recreational activity.

(d) Nothing in this section shall be construed to conflict with or render as ineffectual a liability release agreement between a person who participates in a sports or recreational activity and a provider.

(e) In this section,

(1) “inherent risks” means those dangers or conditions that are characteristic of, intrinsic to, or an integral part of a sports or recreational activity;

(2) “provider” means a person or a federal, state, or municipal agency that promotes, offers, or conducts a sports or recreational activity, whether for pay or otherwise;

(3) “sports or recreational activity”

(A) means a commonly understood sporting activity, whether undertaken with or without permission, including baseball, softball, football, soccer, basketball, hockey, bungee jumping, parasailing, bicycling, hiking, swimming, skateboarding, horseback riding and other equine activity, dude ranching, mountain climbing, river floating, whitewater rafting, canoeing, kayaking, hunting, fishing, backcountry trips, mushing, backcountry or helicopter-assisted skiing, alpine skiing, Nordic skiing, snowboarding, telemarking, snow sliding, snowmobiling, off-road and all-terrain vehicle use;

(B) does not include

(i) boxing contests, sparring or wrestling matches, or exhibitions that are subject to the requirements of AS 05.10;

(ii) activities involving the use of devices that are subject to the requirements of AS 05.20; or

(iii) skiing or sliding activities at a ski area that are subject to the requirements of AS 05.45.

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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.

 

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

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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.

Copyright 2010 -2015 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

Twitter: RecreationLaw

Facebook: Rec.Law.Now

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.

Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

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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!