Release from Liability. (Law Review)

By Sawyer, Thomas H. | JOPERD--The Journal of Physical Education, Recreation & Dance, August 2002 | Go to article overview

Release from Liability. (Law Review)


Sawyer, Thomas H., JOPERD--The Journal of Physical Education, Recreation & Dance


Megan Malin v. Whitewater Mountain Resorts of Connecticut. No. 432774

Superior Court, New Haven Judicial District March 16, 2001

On January 7, 1999, Megan Mali went to the Powder Ridge Ski Area, at Whitewater Mountain Resorts, to go snowtubing. She paid an admission fee and was given a "release from liability" document to sign (figure 1). No oral explanation was provided and Maim signed the document without reading it. She then went snowtubing and on her second downhill run suffered an injury.

Complaint

Malin alleged in her complaint that a Whitewater employee pushed her tube in "too hard a manner" and that Whitewater did not warn her of dangerous icy conditions prevailing on the day of her accident. Whitewater filed a motion for summary judgment based on the preclusive effect of the document signed by Malim.

Judgment of the Court

The court found that neither an employee's excessive pushing nor a failure to warn of dangerous prevailing conditions are among the "inherent" risks of snowtubing covered by the release form. In other words, Whitewater's negligence cannot be considered an inherent risk of snowtubing. Therefore, the release form does not absolve Whitewater of the negligence complained of in this case. The court consequently denied the motion for summary judgment.

Reasoning of the Court

Connecticut does not favor contract (waiver or release from liability) provisions that relieve a person from his or her own negligence. Parties may not protect themselves against negligence in the performance of a duty imposed by law or where the public interest requires performance. The law, in this jurisdiction, disfavors exculpatory contracts "because they tend to allow conduct below the acceptable level of care" (Yauger v. Skiing Enterprises, Inc., 1996).

The release form in this case failed the scrutiny of the court on two points: (1) "the contract must clearly, unequivocally, specifically, and unmistakably express the parties' intention to exculpate the [defendant] from liability resulting from its own negligence" (Adlco v. H. T Brown Real Estate, Inc., 1996); and (2) an obligation to indemnify a party against its own negligence will not be given effect "in the absence of language which itself compels such a result" (Goldman v. Ecco-Phoenix Electrical Corp., 1964).

Whitewater argued that the preprinted form signed by Malin relieved the resort from liability for its own negligence. Yet the word "negligence" never appears in the form. The form fails to expressly release Whitewater from its own negligence, and the negligence of Whitewater and its employees are not included in the list of "inherent" risks enumerated in the form.

Guidelines for Drafting a Waiver or Liability Release

This case illustrates the importance of understanding the law in a given jurisdiction before drafting a waiver or release from liability. It does not mean that contracts of this description are automatically void and unenforceable. Rather, the courts across the United States closely examine the particular agreements in question. "Language inserted by a party in an agreement for the purpose of exempting him from liability for negligent conduct is scrutinized with particular care and a court may require specific and conspicuous reference to negligence under the general principle that language is interpreted against the draftsmen" (Restatement [Second] of Contracts, 1981).

1. Always involve a lawyer in the process.

2. Do not use standardized forms and insert the name of your organization.

3. Customize the form for each specific activity.

4. Clearly, unequivocally, specifically, and unmistakably express the parties' intention to exculpate the organization and its employees (specifically all parties who are to be protected) from liability resulting from its own negligence. …

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