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.




Releases are Void


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.


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.


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


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


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



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.


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


Dalury v. S-K-I, Ltd, 164 Vt 329; 670 A.2d 795; 1995 Vt. Lexis 127


Specific uses of Releases are Void


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.


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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What do I look for when evaluating releases or writing one?

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.

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 fairly 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.

Required for your Release to be Valid

     Contract: The legal requirements for a contract are met if the release is signed

     Updated Recently: Has your release been reviewed by an attorney in the past year or do you work with an attorney that updates you on changes you need to make to your release?

    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?

     Parties: You have to identify who is to be protected by the release and who the release applies too.

     Assumption of Risk Language: Does your release contain language that explains the risk of the activities the release is designed to protect litigation against.

     Agreement to Assume Risks: Do your release have language that states the signor agrees to assume the risk

     Magic Word: Negligence: Does your release have the signor give up their right to sue for negligence?

     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

     Nothing in your marketing program invalidates your release.

     Information to complete the continuing duty to inform

Items that may be Needed Dependent upon the Purpose of the Release

  Parental Release

  Product Liability Language

  Release of Confidential Medical Information

  Signor has viewed the Website

  Signor has viewed the Videos

  Signor has read the information

  Signor has conveyed the necessary information to minor child

  Reference to required Statute

     Demo Language


  Notice of 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


              Mental Trauma

     Risks Not Associated with Activity

              Required Statutory Notice

              List Not Exclusive/ Exhaustive

     Agreement to Assume Risks

              Capable of Assuming Risks

     Lost Personal Property

     Drug & Alcohol Statement

     Company Right to Eject/Refuse

     Good Physical Condition

              Able to Undertake

              Good Mental Condition

     Magic Word: Negligence

              All Magic Words

     Protects Against

              Lost Money

              Lost Time

              Loss of Life

              Medical Bills


     Indemnification Clause




              Medical Evacuation


              Legal Entity





              Other Participants

              Other Parties

     Participant Parties


              Participant Spouse

              Participant Children

              Participant Heirs

     Plain Language

     Alternative Resolution




              In the US

              Out of the US



              Third party costs

              First party costs

     Severance Clause

     How Release is to be interpreted

     Liquidated Damages

              Breach of Covenant of Good Faith

     Misc. Clauses

              Severance Clause

              Enforceability post Trip

              Copy as good as original

              Photo Release

     Adequate Insurance

     Medical Release

              Medical Transportation

              Permission to release medical information

              Waiver of medical confidentiality

              Waiver of HIV status

     Statement as to Insurance

     Incidental issues covered

     Previous Experience

     Medical Condition

     Read and Understood


              Participant Signature

              Both Parent Signatures

              Child Signature

     Medical Insurance information

     Overall Review

     Plain Language:         Readability Level ________

     Adequate Typeface: Typeface Size _________


     Release language in Plain English

     Agreement that the document has been read

     Agreement that the signor agrees to the terms

What Your Release Cannot Have

     Places to Initial

     Small Print

     No heading or indication of the legal nature

     No indication or notice of the rights the signor is giving up

     Release Hidden within another document

     Important sections with no heading or not bolded

     Multiple pages that are not associated with each other

Miscellaneous Clauses your Release may Need

     Electronic Signature Clause

     Rental Agreement Clause

     Alternative Resolution



     Demo Language

              Understand use of Equipment

              Accept Equipment As Is

              Agree to ask questions about Equipment

              Understand Demo Equipment has more Risk

     Rental Language

More articles about releases.

Release/Waivers: The basics, the very basics!                                        

Releases 101                                                                                                 

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

States that do not Support the Use of a Release                                     

What is a Release?                                                                                       

I found a release on the internet. It will work right!                                  

If you are interested in a Professional Review of your Release please let me know.

What do you think? Leave a comment.

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Copyright 2013 Recreation Law (720) Edit Law


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