Assumption of the Risk in Releases and Waivers
ARE WRITTEN RELEASES OF LIABILITY VALID?
Sometimes, people are asked to sign a written release of liability (sometimes called a “waiver of liability”) before engaging in certain kinds of sports or recreational activities. These waivers usually contain language releasing the person or company running the activity from legal liability for injuries the participant suffers while engaging in the relevant activity–even if the injury results from negligence on the part of the host or organizer requesting the waiver.
Generally, these waivers are legal in California, and when a person signs the waiver (s)he is releasing the person or company in question from any legal duty to protect the plaintiff against the risks of the relevant activity. This means if the plaintiff is injured, the defendant generally cannot be sued and held liable for the injury on a negligence theory.
REQUIREMENTS FOR A VALID RELEASE
In order to be valid, and binding, waivers and releases must contain certain important elements. Waivers which lack these elements are not generally legally enforceable, meaning they do not protect the defendant against legal liability for negligence.
These requirements include:
1. Clear and unambiguous language. The release should describe the activity, and the risks, with reasonable clarity, so that a reasonable person could understand the nature of the risks s(he) is being asked to accept.
2. Compliance with law and public policy. Certain types of risks cannot be waived, for legal and public policy reasons.
Additionally, the plaintiff’s injury must be reasonably related to the purpose for which (s)he signed the release. For example, if the plaintiff signed the release before taking a whitewater rafting trip, the injury must be reasonably related to, or caused by risks reasonably arising from, whitewater rafting.
Never try to write a liability release on your own. Business owners sometimes try to save money by copying releases from the Internet or from other similar businesses. However, there is no guarantee that copied releases comply with law or will protect you (or your business) against liability. Always hire an experienced attorney to write a release specifically for your business (or the activities you lead), to ensure that you and your company are properly protected.
Always read releases thoroughly before you sign, and make sure you understand the risks you are accepting. Never sign a release without reading it; never sign a release you do not understand, or engage in risky activities without fully investigating and understanding the risks involved (and how to lessen them, if possible).
Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR AND ANY PERSON. Your rights and experiences may vary. Never use an online article (including this one) to evaluate your legal claims. Speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options. You may lose or compromise your rights if you delay in consulting legal counsel. Negligence claims are complicated and fact-dependent. If you believe you have a claim against someone who injured you, a lawyer who represented you in a previous lawsuit, or any other type of legal claim, consult an experienced lawyer immediately for an evaluation of your personal rights and claims.