- A release of liability for activities should clearly identify the activity that is the subject of the release, who is released from liability, and who is participating in the activity. It might also identify an emergency contact person and their relationship to the person who signs the release, as well as the date. It is also good practice not to rely only on releases but also to have liability insurance;
In What Situations Are Liability Release Forms Used?
Liability release forms are commonly used in a wide variety of situations, such as the following:
- Participation in extreme sports;
- Participation in “ultra-hazardous activities” or activities that are especially risky, such as construction involving the use of explosives;
- Recreational activities such as camping, hiking, or skiing;
- Activities in amusement parks or other similar facilities;
- Situations in which one person provides a service to another that creates a risk of liability.
In some cases, even though a liability release form was signed, the other party could still be held liable for injuries or accidents. An example of this is where a participant in an extreme sport violates league rules or intentionally causes injuries to another participant.
Another example is where the operator of an amusement park ride acted negligently, resulting in injury to a patron. In these types of cases, liability may be found due to the nature of the actions that resulted in injury.
Or, a liability release contract may not meet the standards that a state’s courts apply to determine whether or not it warrants enforcement under state law. So, a court might refuse to enforce it.
An example of the kind of liability that a release or waiver of liability might prevent is liability for wrongful death. A wrongful death suit is a lawsuit brought by a family member of the deceased victim against the person or company who negligently or willfully caused the death. Wrongful death can occur in many situations, such as car accidents, dog attacks, airplane crashes, and in the course of medical treatment, which gives rise to a claim for medical malpractice.
Instances of wrongful death can involve some complex issues if liability release forms or liability waivers are involved. Generally, in a wrongful death lawsuit, a family member seeks an award of monetary damages. The damages reimburse the family for economic losses, pain and suffering, and other non-economic damages and funeral costs.
Liability for wrongful death is only one kind of liability that a release of liability may waive. There are many other kinds of personal injury lawsuits that a release of liability would defeat. In some cases a release of liability may work to limit the amount of damages but not eliminate liability completely.
What Should a Release of Liability Release Form Include?
A contract for release from liability needs to be very specific. It needs to identify who is being released from liability. It must clearly state the nature of the potential claims that are released. If it releases a person or entity from liability for their own negligence, this must be clearly and specifically stated.
Additionally, the release must be conspicuous and not expressed in tiny print in some obscure corner of a document where the person who is releasing another from liability is unlikely to see it.
Are Release of Liability Forms Legally Enforceable?
Whether a court would enforce a release from liability contract depends on the law in the state in which the release is signed and enforcement sought. It is a matter of state law.
However, generally speaking, in most states, courts would enforce a release if it is drafted properly and certain conditions are met. Again, the effect of enforcement would be to prevent an injured party from recovering an award of damages if they are injured or harmed in some other way.
In Texas, if a court is going to enforce a pre-injury release of liability, it must satisfy the requirements of the “fair notice” doctrine, which has two elements: the express negligence doctrine and conspicuousness.
The express negligence doctrine provides that a person or entity seeking to enforce a waiver of liability for their own negligence must clearly express that specific intent in the waiver contract. In any given case, whether the release is specific enough is determined by the court from the facts of the case.
The deciding factor in determining the enforceability of a waiver of liability is whether the waiver specifically identifies the type of liability that is being released. If the releasing party is releasing the other party for claims for that party’s own negligence, the agreement needs to state that explicitly.
If the agreement releases a party for certain activities, those activities must be clearly identified. If the nature of the liability being released is specified clearly and explicitly, then the waiver would probably satisfy the express negligence rule in Texas.
According to the courts and applicable laws, a waiver is conspicuous enough if a reasonable person ought to notice it. Another statement of the rule is that something must appear on the face of the release to attract the notice of a reasonable person when they look at it.
A heading that is printed in capital letters is generally considered conspicuous. Or typefaces that are larger or otherwise contrasted to other typefaces used in the waiver would be viewed favorably. However, tiny print that is barely legible would not be good enough.
In contrast, the Supreme Court of Oregon has added some additional factors that state courts in Oregon must analyze in deciding whether to enforce a waiver of liability. It has identified procedural factors and substantive factors that must be weighed in addition to explicit expression and conspicuousness.
The procedural factors that must be considered by courts in Oregon are as follows:
- Whether the release was conspicuous, clear, and without ambiguity;
- Whether the parties had equal bargaining power or were in unequal positions;
- Whether the contract was presented as negotiable or on a take-it-or-leave-it basis;
- Whether the contract was part of a standard consumer transaction.
The substantive factors are as follows:
- Whether enforcement of the release would cause a harsh outcome or a result that would be inequitable for the party that released the other from liability;
- Whether the entity whose liability is released performs an important public function;
- Whether the waiver seeks to release an entity from liability for misconduct that is more serious than ordinary negligence.
In a case in which a snowboarder had been injured at a resort, the Oregon Supreme Court decided that enforcing the snowboarder’s waiver of liability in their case for damages would be unconscionable. The factors the Court cited were the difference in bargaining power between the snowboarder and the resort, the fact that the waiver was made in the course of a consumer transaction, and the take-it-or-leave-it character of the waiver.
In addition, the Court found the waiver to be substantively unfair and oppressive for two reasons. First of all, it was harsh and oppressive, and secondly, the resort was open to the general public. Therefore, the safety of its customers was of general concern to society, so the public interest was affected. The court allowed the injured snowboarder to seek damages for their losses from the resort.
We can see from the two examples above, Texas and Oregon, that state courts may take very different approaches to the question of whether a waiver of liability should or should not be enforced. Everything depends on the law in the state in which enforcement is sought.
Do I Need a Lawyer for Help With a Liability Waiver Issue?
If you signed a liability waiver before being injured and believe that someone else should be liable even if you waived liability, you want to consult a wrongful death lawyer.
LegalMatch.com can connect you to a lawyer who knows the law in your state. Your lawyer can review all of the facts and the liability waiver at issue and give you solid guidance as to how to proceed.
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