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Free your client from the liability release: purveyors of recreational activities say standard liability waivers shield them from negligence claims when customers are injured but courts don't always agree.

Article Excerpt
People who participate in sporting and recreational activities--from community" softball leagues to skydiving--are usually required to sign liability releases. These agreements generally state that if a person is injured or killed while participating in the activity, he or she--or the person's survivors--is prohibited from holding the provider responsible. By surrendering a claim that would otherwise be sustainable under law, the signer relieves the provider of its duty of due care to the participant.

Although some courts have found liability releases to be enforceable contracts, they traditionally have looked on these agreements with disfavor and contracts them strictly against the party that benefits from the release. Courts have invalidated releases under several circumstances:

* when they conflict with public policy

* when the defendant's conduct amounts to gross negligence

* when the release contains ambiguous language

* when the signer is not aware of the release and cannot reasonably be expected to be aware of it

* when the signer lacks the capacity to contract away his or her--or another person's-claims

In these situations, courts generally al low people who have signed releases to have their day in court.

Public policy

As a general rule, courts will not enforce liability releases that are contrary to the public interest, based on the principle that a party providing essential public services should be required to fulfill its obligation to the public. For example, courts commonly invalidate releases that public schools require students or parents to sign before students may participate in school athletic programs.

Forty years ago, in Tunkl v. Regents of the University of California, the California Supreme Court established a framework for determining whether a liability waiver is contrary to public policy.' More recently, the Washington Supreme Court, in Wagenblast v. Odessa School District, adopted the California court's analysis and outlined the factors to be considered:

* whether the activity is generally thought suitable for public regulation

* whether the party seeking release from liability performs a service of great importance--even practical necessity--to the public

* whether the party seeking release is willing to perform the service for anyone who seeks it, or at least for anyone meeting certain requirements

* whether because of the essential nature of the service, the party seeking release has a decisive bargaining advantage over those who want the service

* whether the party seeking release exercises its superior bargaining power and uses a standardized adhesion contract without offering additional protection against negligence for a reasonable fee

* whether, as a result of the transaction, signers are placed under the provider's control and are subject to the risk of the provider's carelessness (2)

The Wagenblast court--considering releases required for participation in school sports programs--concluded that all these factors should be weighed in evaluating the validity of a release. Although it held that all six need not be present for a court to void a release, it found that all did apply to the releases required by the Odessa School District and invalidated them as contradicting public policy. (3)

While many states, like Washington, follow the Tunkl factors, (4) some use other criteria, so counsel must carefully consider the public-policy test in the relevant jurisdiction. In some states, for example, "public policy" is defined by statute....