Liability Release Forms:
Are they worth the paper they are written on?

by Charles H. Van Gorder

When outfitters discuss their outdoor trips and expeditions, the topics of injury and potential liability inevitably arise. One method of limiting exposure to damage claims is to have each participant read and sign a liability release form. These forms supposedly release you from any liability if your clients are injured on the trip. However, will they actually do so? The answer is an unqualified . . . . Maybe!

In many states, one defense to a negligence claim is the injured party's assumption of the risks inherent in a particular outdoor activity. A client may recognize there is a chance of injury and therefore "assume the risk" of such an injury. If this defense is applicable to a particular claim for damages, it could completely defeat the claim, or substantially reduce the amount of damages to be recovered.

In applying the assumption of risk defense, a court will consider many factors, including whether the client knew of the specific risks that caused the injury, and whether he or she expressly chose to voluntarily participate in the activity despite knowledge of those risks. The use of an appropriate written release or acknowledgment of risk form is one way to show the client was aware of specified risks and chose to participate despite the knowledge of those risks.

A liability release should specify all of the risks to be assumed by a client. They may be able to release the sponsor from liability resulting from naturally occurring conditions, equipment failure, actions of other participants as well as negligence on the part of the sponsor.  However, liability resulting from gross negligence or recklessness usually CANNOT be waived.

A complete release form will not only address the inherent risks in a particular outdoor activity, but also other concerns such as applicable state law and an award of attorney's fees in the event of an unsuccessful attempt to challenge to validity of the release. A release should include a severability clause so the entire release will not be void if any one portion is invalid. The release needs to name all of the parties that are to be released from liability.

Preparing the appropriate release form is only the first step in protecting yourself from liability. A release form must also be used in an appropriate manner. For example, clients must have an adequate opportunity to read and understand the release. A client must also have a realistic choice of not participating in all or a portion of the activity, and of receiving a refund of fees paid if he or she does not want to sign the release. The release should state the client understands that signing the release may result in the loss of certain legal rights in the event of injury.
The law is quite unsettled over whether releases can be enforced against minors. Courts in some states have ruled that minors don't have the legal capacity to sign releases. Some states have ruled that parents can sign releases on behalf of their children, while other states have ruled parents have no right to sign away the legal rights of their children.

A new concept for limiting potential liability when minors participate is for the parents to agree to indemnify the sponsor in the event a minor successfully sues the sponsor for damages. Thus, if there is an award on behalf on the minor, the sponsor can seek reimbursement from the parents. Since the use of indemnification agreements is a fairly recent practice, there are few court cases involving the validity of such agreements. State courts may decide such agreements are contrary to public policy and therefore invalid. Until such time as a court in your state rules on this issue, however, it makes good sense to use such agreements in an attempt to limit potential liability.

Liability release forms may not always be the perfect defense to a lawsuit when a client is injured on a trip. However, if you are ever asked whether a liability release form is worth the paper it is written on, the correct answer is YES, and the client should assume it is valid. If they are unwilling to sign a valid release form, you don't want them on your trip! By the way, if your answer were to be NO, you may just have lost any chance of having the liability release enforced against the client!