RISK RELEASES: A CHECKLIST
by Aaron Goren, Gottlieb & Goren, P.C.

Risk release is a contract to release the right to sue before any incident occurs. This is different from the more familiar kind of release that absolves a party from liability, usually by paying a settlement, after the injury or incident.

The checklist that follows should be useful in drafting or selecting an appropriate risk release document. Even if you are already using a risk release, you should review it for possible improvements. Be aware that many risk release forms may look sufficient, but upon scrutiny do not really do the job. Also, be aware that each state decides the legal validity of a risk release based upon its own law and reasoning. Therefore, the law of the activity is critical to drafting or selecting a suitable risk release document

CHECKLIST

• Include a clear statement of who is being released. The protected parties must be either identified by name or come within the category of person specified.
• Include a clear statement of who is the releasing party.
• Have the participant's spouse sign the risk release. A spouse has potential claims such as reimbursement for medical expenses and loss of care and services (1).
• Have the participant agree to indemnify (2) the activity sponsor and its personnel for actions of the participant.
• Have the participant agree to indemnify the sponsor and its personnel in the event of a claim by someone, such as a spouse, who suffers a loss because the participant was injured. Caution is urged with respect to the use of an indemnification provision: In some states, a party has no right to indemnification for its own negligence. Even where an indemnification clause is enforceable, a court will typically construe the indemnification obligation under a rule of strict construction against the drafter of the document. So, the indemnification clause must clearly provide that it covers the provider's own negligence.
• If a minor is the participant, have the minor's parent release claims the parent may have, such as reimbursement for payment of medical expenses. However, because courts will usually not allow a parent to give up a claim belonging to a child, a risk release signed by a parent will not release the activity sponsor from liability to the minor. An indemnification provision in the risk release signed by the parent will shift liability to the parent. However, this approach requires careful consideration of applicable state law.
• State the activity covered.
• Identify the types of potential claims that are being released. Types of potential claims should include negligence (3).
• Potential claims released should also include gross negligence (4), if allowed by state law (5).
• Potential claims released should also include failure to furnish safe equipment, acts or omissions by employees, ground hazards, etc.
• List the risks and hazards to the participant. State specifically foreseeable consequences of the risk of negligence. The description of the risks and hazards must consider the participant's understanding of the activity. A thorough recitation of obvious and non-obvious inherent risks is appropriate.
• If a foreseeable consequence of the risk of negligence includes death, say so.
• If there may be a limitation to evacuation facilities, state this.
• Have the participant acknowledge that the use of protective equipment was mandated or offered for use.
• Give the participant the opportunity to affirm that he or she is in proper physical condition to participate in the activity. This provision is appropriate because the health of the participant may increase the risks and damages that the participant faces.
• The document should evidence that the person signing the risk release received the necessary information to allow him or her to make a knowledgeable and informed release. Be prepared to show that the person signing the risk release should have understood the risks and hazards inherent in the activity as explained in the document.
• The risk release should be easily readable and in plain English.
• Avoid fine print
• Emphasize important points in larger or bold-faced type.
• Use language that is understandable. Does the document read in understandable (simple English) terms? Be aware that an agreement is strictly interpreted against the party that drafted it.
• Resist the urge to use vague language even if you think that otherwise you will lose participant interest.
• Include a plain and clear statement that the signer has read and understands the document.
• Include very visible instructions to read the document carefully. Make it your practice to give the signer ample time to review the document and to ask any questions about it.

CONCLUSION
It is prudent for an activity sponsor to require a participant and anyone who derives a claim from the participant (i.e., a spouse or a parent) to sign a risk release in advance. However, to be effective, the release must be properly drafted and signed. Then, the risk release becomes an important proactive defense to costly claims and litigation.

1. Depending on the law of the particular state, the spouse who has not signed a risk release document may not be able to sue if the participant's spouse signed a risk release.
2. To indemnify is to shift, by contract, the responsibility for the payment of damages to someone else
3. Negligence is defined as: The omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do. (Black's Law Dictionary, Sixth Edition, p. 1032).

4. Gross negligence is defined as: The intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another...(Black's Law Dictionary, Sixth Edition., p. 1033).

5. A state such as Michigan will not permit the contracting away of the risk of gross negligence (as distinguished from ordinary negligence) as contrary to public policy