States that do not Support the Use of a Release.
Posted: August 13, 2020 Filed under: Release (pre-injury contract not to sue) | Tags: Alaska, Arizona, Covenant not to sue, Louisiana, MISSISSIPPI, Montana, New Mexico, New York, Oregon, Release, Utah, Virginia, Waiver, West Virginia 1 CommentAssumption 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. |
| 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. |
| Not Sure Where the Supreme Court Stands at This Time | ||
| 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. However, Montana passed the Montana Recreation Responsibility Act which now allows the use of a release for Recreational activities. This Act has not been reviewed by the courts. |
| Utah | Decisions for Releases Utah’s decision upholds a release for simple negligence but not gross negligence in a ski accident Decisions Against Releases Utah Supreme Court Reverses long position on releases in a very short period of time |
Utah seems to be adopting a position against releases. So far, they are invalidating releases if the legislature has created a statute protecting an activity. However, they have had several decisions supporting releases. Good luck |
What do you think? Leave a comment.
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Releases: Using it Properly
Posted: June 4, 2020 Filed under: Release (pre-injury contract not to sue) | Tags: Covenant not to sue, Pre-Injury Contract, Release, Release (pre-injury contract not to sue), Wavier 1 CommentSeven-Part Program to Build a Release to Defend your Business/Program/Activity
Releases are also known as “waivers” or “covenants not to sue.” They are also called “allocation of risk” or “transference of risk” documents. Whatever the name, they are an agreement between two parties as to who will assume the cost of injury prior to the injury.
Another type of document called an “Assumption of Risk” document does not provide the complete extent of legal defenses a release provides. However, in states that do not allow the use of a release, or if you are dealing with minors, an assumption of the risk agreement is your best defense. You need to know the difference, know when to use which one and when to combine the two.
A properly written release, which includes assumption of the risk language, used in conjunction with a well-thought-out marketing plan, and post-accident follow-up can stop lawsuits. Your release or waiver is not the only document you need to build a wall of protection around your business or educational program, but it is the most important. The other two are a legal entity protecting your business like an LLC and insurance.
Why include “marketing plan” in a risk-management memo? Because:
Releases will be different for the type of business you run. An outfitter, a business where guides accompany the trip, will have a different release from a livery or canoe rental business where a canoe or equipment is rented for the day. Activities where parents accompany children and maintain control and supervision over children will be different from either an outfitter or a livery release. Some releases may be simple notices of those risks which the participants need to be aware of and those campground rules which are designed to prevent injuries.
Your release will also be different based on the activity, the state where the release will be used, the age of your participants and the risks you want them to assume. No release, if it is to be effective, is going to be like any other release.
You need to understand what type of operation you have, not only from your perspective, but also from your participant’s point of view. What you see as normal or fun may scare your participants. Always look at your world through their eyes.
Releases for product liability issues are a different type of release entirely.
First Line of Defense
The first document your client reads or sees should start the process of preparing the client for the risk, and the fact that he or she will be assuming the risk of the activity. Most times this will be your brochure, marketing letter course catalog or website. Emphasize in these that your company uses a release, and that customers must sign the release before they can participate in an activity or trip. You might want to state there is the possibility that guests can be injured or die during the trip, and that you are not responsible for their injuries or their lost or destroyed personal property. This opening information is the first brick in your wall of protection.
You don’t want an injured guest suing you stating that if they knew about the risk and the release, they would not have gone on the trip or attended your activity.
Second Line of Defense
The next step is to ensure that the release is given to your customers as soon as possible. This may not be possible with walk-in business. However, you should always make the attempt. Put your release on your website so your guests can review it if they go to your website.
Make sure your release and the other documents you use, do not create a conflict or a lawsuit. Do not make promises you cannot keep about the safety of the trip or activity. Doing so can make your release a worthless piece of paper. This can happen if you do not answer questions about your release, or you answer the questions incorrectly. Your staff should also be trained to answer questions correctly and adequately represent the risks involved.
If your release is for a product being purchased, then the release should be given to the customer as you are preparing the product for sale. Give the customer plenty of time to read the release and ask any questions. Placing your release on your website in advance so they can read it, then eliminates the argument, the signor did not have enough time to read and understand the release.’
If you can’t provide the release to a purchaser of your product in advance, then provide an incentive for them to sign the release after they purchase the product. Extend the warranty or send them something that qualifies as consideration to provide value for signing the agreement.
Defense Three: Train your staff in your release
Tell your staff to hand the release to the client with the front up. Ask them to read both sides of the agreement and sign and complete the backside.
If a guest asks if the release is valid, say yes. Tell them the release is significant in keeping your costs down by keeping your insurance at a reasonable amount. A release identifies who is going to pay for any injuries or damages in advance so you do not have to spend time and money litigating this issue later.
Defense Four: Assumption of the Risk
Every release should outline the risk associated with that particular activity. Saying something is dangerous is not enough. You need to specify many of the actual risks for the activity. Remember most of the customers interested in your trip or activities are excited because they have never participated in a trip like yours. As such they may also have no idea what the risks of the activity. They may want to compare your activity to the last thrilling experience they had, an amusement park. You need to explain those risks to them. Many companies do this in a “safety talk.” Educational institutions do this at pre-trip meetings or briefings. Trying to impress a jury with what was said in a meeting or on the side of a river can be daunting. Your release can help prove your clients knew and understood the risk they were about to undertake.
Rental agreements can be interpreted several different ways by the courts. If you believe you are running a pure rental operation, your documents can be significantly different from a rental operation the courts consider an outfitter. Review your operation with your attorney to make sure your attorney understands your business and which interpretation the courts will apply.
Assumption of Risk – Defense Five and Your First Step Your Risk-Management Program
If you have the opportunity to use a release, then the following information will be included in your release and incorporate the risks of the activity to be assumed by your guest. If you do not have the opportunity to use a release because of state law, then you will be using an assumption of risk document.
Assumption of Risk is a legal defense that can be used to win a lawsuit or substantially reduce the damages of a lawsuit. It may also be the only line of defense with minors. As such Assumption or Acknowledgment of the Risk (ASSUMPTION OF THE RISK) plays an important role in your business.
The legal effect and how an assumption of the risk and Contributor Negligence is used in the Courtroom are substantially different. However, from a non-lawyer perspective, there is little difference between the doctrines.
Contributory Negligence is an argument based upon the facts at trial where the jury decides if the Plaintiff’s or injured parties actions contributed to his injuries. If the Plaintiff knew about the risks and still acted or refused to act causing his injuries, he contributed to his injuries, and his damages are reduced by his percentage of his contribution to his injury. Assumption of Risk is used here because the idea is well defined by the words. In addition, when your clients truly know and understand the risk, they are less likely to be injured, let alone start a lawsuit.
Assumption of Risk must be proved by you to win a lawsuit. You will need to prove that your client knew and understood the risk they were about to undertake. Not only must they know which things were dangerous; they needed to know how dangerous. For example, most people know traveling to third-world countries may be dangerous. However, do most Americans really understand you can die from what Americans would consider a minor illness or injury. Medical care in Third-World countries can be substandard to the care someone would receive in America. Consequently, this two-step knowledge can be difficult to prove in some instances. It requires an affirmative set of actions to move this knowledge and understanding to the level necessary to win a lawsuit.
Most of us identify the obvious risk of a sport. Water activities we identify drowning, rock climbing we understand falling, and winter camping, freezing. However, a substantial amount of the injuries’ Outdoor Recreation arise away from the main activity. Side hikes while rafting are the major cause of injuries in the Grand Canyon. A large percentage of the injuries in rock climbing occur when items fall on the climber, or they fall hiking to the climb. Study the injuries you clients receive and make sure the most common, no matter how trivial, are listed in your assumption of risk document or release, as well as the most horrendous.
The easiest way to prove your clients knew and understood the risk is to put that information in writing and have your clients acknowledge they read those risks in the document. Some states require the information concerning the risk to be a component of a release. As such, your release should always contain language outlining the risks of the activity. Judges frequently comment on the fact the injury sustained by the Plaintiff was specifically identified in the release or assumption of risk document.
Remember that any document or video your clients read or view can be used to prove they understood the risks. Your release, promotional information, pictures in the office or videos are important. To prove the clients knew and accepted the risk several companies or industries have developed videos to show to clients before they undertake the activity. A video has proven to be extremely important in preventing possible lawsuits. It is difficult to sue, when the actions that injured the Plaintiff were identified visually and audibly as something not to do. Add to that the release identified the risk and stated the client had seen the video. This is a fairly iron clad wall against an invasion by injured customers. To see examples of these, OARS the whitewater rafting and adventure travel company, has a complete set of videos on the risks of rafting at: http://rec-law.us/NvHtqu
Defense Six: Understand the Risk from Your Client’s Perspective
To prepare your clients for the risk, you need to evaluate the risk in advance. Do this from your client’s perspective, not from your own. Gather information on what the actual risks of the activity are. Ask your insurance company for a list of the claims they have had over the past several years. Look at the accidents you have had over the life of your company, and that may be peculiar to your operation, where you are operating, or your clients. Finally, always include the worst-case scenario in your release, even if that chance is remote such as paralysis, death, mental anguish, or trauma.
You will be able to explain the risks to them, so they understand, not just what you believe are the risks.
Because assumption of risk is a personal question to be examined by the judge and jury, you need to make the knowledge personal. Use the examples included here as a starting point to build a risk statement for your operation.
Defense 7: The Wall is up, Don’t Tear it Down.
Your wall of defense consists of multiple blocks that inform your guests of the risks they are going to undertake and who will pay for any injury they may encounter. The final Defense in your defense wall is how you deal with your guests after they have been injured. If you have done a good job of informing your guests of the risks, then they should be mentally prepared to accept the fact the injury was probably their fault and their responsibility. However, right after an injury is not the time to bring that up.
You want to treat an injured guest the same way you treated them before their injury. Nothing has changed. They are still a guest who can pay your more money for another trip or send you referrals with their good word. Treat them the way you treat everyone. Be attentive, help them and their family. Follow up and remain their friend.
Moss Maxims: Ideas to Remember when dealing with Guests
10 Signs of Great Risk Management http://rec-law.us/sUzpHT
7 Mistakes Made by People who are called Defendant http://rec-law.us/stli09
Crisis Response http://rec-law.us/ul6Nrl
Reasons Why People Sue http://rec-law.us/uZ5RKR
Ten Commandments of Dealing with People in a Crisis http://rec-law.us/KoI8Xo
Additional Articles on Why People Sue
It’s Not Money http://rec-law.us/zxmmqy
Serious Disconnect: Why people sue. http://rec-law.us/wm2cBn
Why do people sue? Not for the money. http://rec-law.us/A0866T
A Church wants to apologize and the insurance company for the church panics. What else would you expect a church to do? http://rec-law.us/zI0FUI
Great article on why some corporate apologies fall short and they are not sincere http://rec-law.us/xb1uVb
Her life is permanently changed, but she really wants an apology http://rec-law.us/yHjVn0
Make sure you understand what the other side is saying http://rec-law.us/1b5m1mt
States that do not Support the Use of a Release
Posted: February 4, 2015 Filed under: Release (pre-injury contract not to sue) | Tags: Alaska, Arizona, Connecticut, Covenant not to sue, Hawaii, Louisiana, Montana, New Mexico, New York, Oregon, Release, Vermont, Virginia, Waiver, West Virginia, Wisconsin Leave a commentAssumption 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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RELEASE (Waiver) CHECKLIST
Posted: May 1, 2013 Filed under: Assumption of the Risk, Release (pre-injury contract not to sue) | Tags: Assumption of risk, Checklist, Contract, Covenant not to sue, Document Management, Exculpatory Agreement, Exculpatory clause, Insurance, Law, Practice Management, Products, Release, Waiver Leave a commentWhat 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
Needed
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
Death
Mental Trauma
Risks Not Associated with Activity
List Not Exclusive/ Exhaustive
Alternative Resolution
Arbitration
Mediation
Indemnification
Third party costs
First party costs
Severance Clause
How Release is to be interpreted
Breach of Covenant of Good Faith
Permission to release medical information
Waiver of medical confidentiality
Waiver of HIV status
Statement as to Insurance
Incidental issues covered
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
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! http://rec-law.us/AaqwqH
Releases 101 http://rec-law.us/xGL0I3
States that allow a parent to sign away a minor’s right to sue http://rec-law.us/z5kFan
States that do not Support the Use of a Release http://rec-law.us/zHGQsZ
What is a Release? http://rec-law.us/xMECTc
I found a release on the internet. It will work right! http://rec-law.us/14w6qeh
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
Email: Rec-law@recreation-law.com
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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Recreation Law 