No More Waivers, Releases Or Consents

In 2003 a man took his three children and another child snow-tubing at the Powder Ridge Ski Resort in Connecticut. The man’s right foot became caught between the tube and a man-made bank. He broke his leg and required several surgeries. The man had signed a waiver, defense, indemnity and hold-harmless agreement and release of liability, but the establishment was still found negligent.

Based on the ruling in this case (Hanks v. Powder Ridge, 2005) and litigation in related cases on the subject of “waivers, releases and consents,” I propose a different approach to improve your odds should you be subjected to a lawsuit charging negligence. I believe that recreation agencies can be more proactive in matters of risk exposure by shifting the assumption of risk where it rightfully belongs–on the user of services.

Thoughtfully crafted participation agreements are much more effective than traditional releases, waivers and consents that do not hold up in court, and that offer neither party any real protection.

Participation Agreements Are Better

A participation agreement is more likely to be viewed as binding on both parties, thereby enhancing its ability to be upheld as legally sound. Such an agreement sets out for the record the communication efforts made in advance by the recreation agency to notify participants of inherent dangers, possible injuries and the effects of participation. Participants are then free to choose whether or not and how they will participate. This type of agreement does not relieve the recreation agency of its duty to be free of negligence.

In effect, no document can seek relief from liability for being negligent because doing so asks the legal system to ignore the duty to serve and protect the public. No document can seek to ask for release of culpability in advance. Negligence and its redress have always been and will be litigable. (I can give you my permission to play softball, but I cannot give you my permission to break an ankle because field-maintenance personnel ignored a known hazard that caused the broken ankle.)

Meeting The Legal Test

In the Powder Ridge case and similar cases, the court once again reiterated the basic legal issues facing all recreation agencies and their obligations in alerting participants to risks. The court reasoned that agreements must be able to meet the following standards:

· Agreements to participate do not insulate a recreation organization from liability for negligent acts.

· All documents to be signed by participants should be coherent.

· Inherent risk is just that, but negligence cannot be waived.

· “Other risks” (non-inherent risks) must be prevented.

· Contracts cannot relieve an organization or individual from negligent acts.

Cases will continue to go “either way,” not so much because they are different types of cases, but because of jurisdictional differences, new judicial insights, factual differences and new or more effective legal strategies and defenses.

The Hanks’ court took particular aim at what are called exculpatory language agreements. Their principle is misguided aim forgiveness from guilt ahead of time of the possible offending party, usually the agency or organization offering the service. It is a way of “warning” signers that they may not sue if they are injured, but such documents are looked at as coercive and illegal, therefore indefensible by most courts. No one can sign away the right to sue for injury before an injury occurs, as it is impossible to know ahead of time whether an injury is due to normal, inherent risk or someone else’s negligent performance.

The court said, “ … enforcement of a well-drafted exculpatory agreement purporting to release a snowtube (sic) operator from prospective liability for personal injuries sustained as a result of the operator’s negligent conduct violates public policy.” On the basis of that ruling, the court overturned the lower-court ruling and ruled in favor of the claimant for injuries suffered as a result of the operator’s negligence. The man whose leg was badly damaged and who was irreparably harmed for life won on appeal.

Avoiding Litigation Is Still The Best Practice

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