Release fails to protect the defendant because the release was also a sign-up sheet and a promise to obey the rules.

A release is a waiver of future claims, an important contract, and it should never be anything else. Here a badly written release that attempted to do multiple things cost the defendant.

Burd v. KL Shangri-La Owners, 2003 OK CIV APP 31; 67 P.3d 927; 2002 Okla. Civ. App. LEXIS 143; 74 O.B.A.J. 1109

Date of the Decision: December 23, 2002

Plaintiff: Georgia N. Burd

Defendant: KL Shangri-La Owners, L.P., Highgate Hotels, Inc., and Highgate Holdings, Inc., all d/b/a Shangri-La Resort and John Doe 1-3

Plaintiff Claims: Negligence

Defendant Defenses: affirmative defenses of contributory negligence, assumption of the risk, failure to state a claim and inadequate notice of a dangerous condition

Holding: For the plaintiff, the release was thrown out on appeal.

The facts are fairly simple. The plaintiff was at the defendant’s tennis club to compete in a tennis tournament. Somehow she got behind a curtain and tripped over rolls of carpet stored there. She sued for her injuries. The defendant’s tennis club argued the release should stop her claims.

The trial court held the release stopped the suit and held for the defendant. The plaintiff appealed.

Summary of the case

Oklahoma supports releases but requires that they be written within strict parameters. “While these exculpatory promise-based obligations are generally enforceable, they are distasteful to the law.” The court went on to define the requirements for an effective release as “a gauntlet of judicially-crafted hurdles.”

For a validity test the exculpatory clause must pass a gauntlet of judicially-crafted hurdles: (1) their language must evidence a clear and unambiguous intent to exonerate the would-be defendant from liability for the sought-to-be-recovered damages; (2) at the time the contract (containing the clause) was executed there must have been no vast difference in bargaining power between the parties; and (3) enforcement of these clauses must never (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy.

The release in this question was at best weak and incorporated several other legal issues within the four corners of the agreement. “We note this document also serves as a roster sign-up sheet and a promise to play by league rules and demonstrate good sportsmanship.”

The court then stated. “We hold, as a matter of law, that the general, non-specific release of “any facility” was insufficient under Schmidt to relieve Shangri-La [Defendant] from liability.” The court then stated specific issues that if found wrong with the release.

Patron could not contract away Shangri-La’s liability, because (1) Patron did not know she would be playing at Shangri-La; (2) the identity of the tortfeasor was not known to her at the time of the contract; (3) there was no intent, and thus no meeting of the minds, to exculpate Shangri-La, and (4) the language of the exculpatory contract is vague and ambiguous.

In the case at bar, the general, nonspecific waiver signed by Patron is completely dissimilar to the detailed, explicit release in Manning. In the instant case, the identity of the possible tortfeasor is unclear, over broad, unnamed, and unknown. Further, the waiver fails to identify the risks being waived, the duration of the waiver, and is arguably ambiguous….

The crowning statement of the court was held to the end.

…that Patron’s signature could be construed as an acknowledgment of the rules of the tennis league, of the waiver of liability, or merely of an indication that she wished to be part of a particular tennis team.

So Now What?

It’s simple. If you expect not to be sued by your guests, patrons, clients, and participants, you need to have a well-written release. The release must meet the requirements of the laws of the state where the release will be used.

The release can only be used as a release. It can’t be a sign-up sheet. It can’t have multiple signatures. It can’t contain rules. It can only be a release.

If your release is not well written, you are just killing trees. Wasting paper on a document that won’t work and having attorneys and insurance companies create mountains of documents trying to save your……business.

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management

Outdoor Recreation Insurance, Risk Management and Law

and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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By Recreation Law   Rec-law@recreation-law.com       James H. Moss

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