From a legal perspective, the importance of liability releases, at least in most states, cannot be overemphasized. Details vary, but releases often determine whether, and where, the adventure park can get sued, and if sued, the ultimate outcome of the case. Here are five tips regarding releases. Each tip is based upon issues from actual lawsuits and claims.
1 KEEP AND ORGANIZE ALL RELEASES
The advice to make sure you properly store and organize releases may sound obvious, but too often signed releases go missing. It is important to make sure signed releases are properly stored— physically or electronically—and are well organized. If possible, keep them in multiple places and multiple media. I once defended a lawsuit in which, after months of searching, my client could not locate the release signed by the plaintiff prior to getting on the ride. We were certain that she signed it, but without proof, we ended up settling the case for much more than we would have otherwise.
2 WHO SIGNS THE RELEASE?
While most states (though certainly not all) enforce releases signed by adults to varying degrees, fewer states enforce releases when the injured person is a child. Some states, such as California and Colorado, enforce releases signed by parents on behalf of their children, but many do not. For states that do enforce them, often they are only enforceable if signed by a parent or guardian. This, of course, raises myriad logistical issues for the park.
Much to my wife’s chagrin, when we do any activity together that involves a release, I am one of the few people who actually spends the time to carefully read each word before I sign it. More often than not, the biggest error I see as a guest is not in the wording of releases, but the fact that employees never check or verify that the children with me for whom I’m signing the release are mine, as opposed to nieces and nephews or friends’ children. In many states, the release is only valid if it’s the actual parent or guardian who signs. So, to the extent possible, make sure that you are getting the child’s actual parents to sign the release. Fortunately, the increase in popularity of electronic releases makes this process easier than it used to be.
3 JURISDICTION AND CHOICE OF LAW
Some states are better than others to get sued in, and some counties within each state are better than others, as well. A release provides your park with the unique ability to choose where you will and will not be sued, and often what law will or will not apply.
Suppose your adventure park is located in a fairly conservative rural county, but is a one-hour drive from a fairly large and politically liberal city in which you keep a sales office. In the conservative rural county, the average jury verdicts are a half or a third of the size of the neighboring liberal city. So, be sure that your release mandates that you can only be sued in the county where your adventure park is located, not where your sales office is located. Similarly, a choice of law provision that lists which state’s law applies—the park’s or the guest’s—is nearly as important.
These clauses can be critical. I dealt with a claim many years ago where the release specified that Colorado law applies, and claims could only be brought in the Colorado county where the adventure park was located. A guest from Florida was injured while he was on vacation. On his return to Florida, he hired a Florida attorney who sent us a demand letter citing Florida law. We sent a brief response letter, showing the Florida attorney that the release mandated that the claim be brought in a certain county in Colorado under Colorado law, and that releases are enforceable under Colorado law. We never heard from the attorney again. Without that clause included in the release, it is likely a lawsuit would have been filed.
4 ADD AN ATTORNEY FEE PROVISION
In commercial contracts, like the contracts for purchasing new equipment, there are often attorney fee-shifting provisions. These provide that if one party or the other prevails in a lawsuit over the enforcement of the contract, the prevailing party is entitled to its attorney’s fees and costs from the dispute. A release signed by a guest is generally like a contract—a contract to agree not to sue the park and its employees. Although a release is a peculiar form of a contract, there is no reason not to include an attorney’s fees clause like you would in other contracts. This clause should be written so that it goes in only one direction, meaning that the guest is responsible for the park’s attorney’s fees and costs if the guest’s lawsuit against the park is unsuccessful, but the park is not liable for the guest’s attorney’s fees and costs if the guest is successful in his or her lawsuit.
This provision alone is often sufficient to dissuade individuals from suing. If a case is brought, this provision will likely provide a great bargaining chip that helps deter appeals. Armed with the attorney’s fees clause in the release, defense attorneys frequently are able to negotiate a deal with the plaintiff’s counsel: Defense counsel will agree not to pursue attorney’s fees if the plaintiff agrees to give up the right to appeal. Preventing an appeal provides the operator with finality on a lawsuit it has won. But the clause provides great bargaining power for all settlement negotiations, including those early in the case.
5 CONSULT WITH A LOCAL ATTORNEY
Every state has its own unique laws that impact releases, sometimes for very specific circumstances. Ignore your local law at your own peril. For example, a number of years ago, I defended a horseback riding injury case for a park that had a concessionaire that offered guided rides. Our co-defendant, the horseback riding guide service, used the insurer’s usual nationwide release for horseback riding. For a horseback riding release to be enforceable in Colorado, however, it must contain language from Colorado’s equine statute, specifically: “WARNING: Under Colorado Law, an equine professional is not liable for an injury to or the death of a participant in equine activities resulting from the inherent risks of equine activities, pursuant to section 13-21-119, Colorado Revised Statutes.”
The park’s release contained that language and we won summary judgment in the case. The horseback riding guide service did not, and ended up settling the case as opposed to winning outright. Consulting with an attorney who knows your state’s release law inside and out is critical. The omission of a few dozen words under your state’s law can mean the difference between winning and losing a lawsuit.
These five tips can improve the usefulness of your releases. No release is bulletproof or foolproof, and creative plaintiff attorneys will figure out ways to attack any release. But the better drafted your release is, the more likely it is to protect you from protracted and costly litigation.