Think your release will survive a lawsuit? Test your Release and Find out.
Posted: January 13, 2016 Filed under: Release (pre-injury contract not to sue) | Tags: Getting Ready for the season, Release, Release Checklist, Waiver 2 CommentsSimple test to determine if your release is sufficient to meet the legal issues you face.
Let me know your scores? Email them to me at Jim@Rec-Law.us
RELEASE CHECKLIST
If you are getting ready for your summer recreation season 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 it is ready to go for your season.
Not all of these clauses may be needed. However, some of them are critical and they should all be modified based on your activity, program, employees, and ability to undertake the risks.
Required for your Release to be Valid
Each Check is worth -3 points
___ Contract: The legal requirements for a contract are met if the release is signed. Both parties understand what the contract is and what it means.
___ 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?
Notice of Legal Consequence: Does your release state there may be legal consequences to the signor upon signing?
___ 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 your 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
___ Adequate Typeface: Typeface is large enough to read.
___ Readable: Release is not confusing, but is readable.
___ Nothing in your marketing program invalidates your release.
___ Information to complete the continuing duty to inform
Total Score: _________________ our of 48
However if you don’t have all of these your score may not matter. The above issues are critical in any release!
Items that may be Needed Dependent upon the Purpose of the Release
Each Check is worth -2 point
___ 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
___ Understand use of Equipment
___ Accept Equipment As Is
___ Agree to ask questions about Equipment
___ Understand Demo Equipment has more Risk
___ Rental Language
Total Score: _______________ out of 34
Needed
Each Check is worth -1 point
___ 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
___ Risks Not Associated with Activity
___ List Not Exclusive/ Exhaustive
___ Company Right to Eject/Refuse
___ 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
___ Medical Insurance information
___ 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
Total Score: ____________________ out of 89
What Your Release Cannot Have
Each Check is MINU 5 Points
___ 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
Total Score: ________________________
|
Possible Score |
Score |
Score First Group |
48 |
|
Score Second Group |
34 |
|
Score Third Group |
89 |
|
Minus Score from the 4th Group |
-35 |
|
Total |
|
|
Scoring:
Possible Score |
Rating |
150 – 171 |
Excellent You are Probably Good to Go |
120 – 149 |
Running on the Edge, the old “You may want to get that looked at….” |
Below 119 |
Quit killing trees for no purpose, your release sucks |
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Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2015 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
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