Legal Releases: Current Status and Historical Perspective
by Jim Moss

Releases always take a beating in any discussion about protecting yourself from a lawsuit. Most people don't think a release is worth the paper it's written on. In some cases that is true. However, outdoor industry releases are being upheld in the states where most outdoor activities take place. Three recent cases on the issue of whether a release is a valid: defense to an action in the outdoor industry are: Heil Valley Ranch Inc. vs. Simkin, Krazek vs. Mountain River Tours, and Saenz vs. Whitewater Voyages, Inc. The first is a Colorado horseback riding case and the latter two are rafting cases.

In all three cases, releases were successfully used as a defense against damages sought as a result of death or injuries sustained while on a commercial outing. In ruling on the cases, the courts involved made some relevant comments about the use of releases and cited several historical cases. A summary of the important information is given below.

In the case of Heil Valley Ranch, Inc. vs. Simkin, the Colorado Supreme Court reviewed a release signed by the plaintiff at a ranch to go horseback riding. The court's inquiry was directed to whether the release was clear and unambiguous and required the use of the word "negligence." The plaintiff volunteered to ride a horse that required a "good rider." The plaintiff was questioned about her riding ability and she replied that she had worked on a dude ranch. She mounted a horse that started to walk backwards, and eventually reared up and fell backwards on the plaintiff, injuring her severely.

In ruling on this case, the Colorado court went back to the case of Jones vs. Dressle which set forth requirements for examining exculpatory agreements. Exculpatory agreements are defined as those that limit a party's right to recover money for an injury. In reviewing exculpatory contracts the court set forth the parameters required for a contract to circumvent being void: One party must not be at such an obvious disadvantage in bargaining power that the effect of the contract is to put him/her at the mercy of the other's negligence. In determining whether an exculpatory agreement is valid there are four factors that a court must consider: 1 ) the existence of a duty to the public; 2) the nature of the service performed; 3) whether the contract was fairly entered into; and 4) whether the intention of the parties is expressed in clear and unambiguous language.

For Heil Valley Ranch, Inc. vs. Simkin, the test was whether the parties intended to extinguish liability and whether this incident was clearly and unambiguously expressed. The court stated that the first sentence of the release specifically addressed a risk that adequately described the circumstances of Simkin's injury. The record also supports the conclusion that Sirnkin was not a novice rider, but instead, was one with some experience.

The court also reviewed an Illinois case, Harris vs. Walker, that held that a rider who fell off a rented horse could not sue. The release did not use the word negligence, but said, "your signature shall release (defendant) and employees of any liabilities you may incur on the premises for any injury which may result from horseback riding." The Colorado court seemed to adopt the Illinois statement that, "when the parties adopt broad language in a release, it is reasonable to interpret the intended coverage to be as broad as the risks that are obvious to experienced participants.°

Under the circumstances of Heil Valley Ranch, Inc. vs. Simkin, it is reasonable to interpret the broad language in the release to cover claims based on negligence or breach of warranty. It is difficult to imagine any claim that Simkin could have asserted against Heil Valley that would not have been based on negligence. Therefore, it is unreasonable to interpret the agreement in such a way that provides no protection to Heil Valley and renders the release meaningless.

In the case of Krazek vs. Mountain River Tours, the Fourth Circuit, Federal District Court also upheld the use of a release without the word "negligence," as a bar to recovery by the plaintiff. In this case, the plaintiff was rafting on the New River. During the trip they encountered a severe hailstorm. The guide ordered the rafters into the river to protect them from the hail. While in the river, the plaintiff was swept away.

The release she signed stated, "In consideration of and as part payment for the right to participate in such river trips or other activities and the services and food, if any arranged for me by Mountain River Tours, Inc., its agents, employees, and associates, I have and do hereby assume all of the above risks, and release, and will hold harmless from any and all liability, actions, causes of actions, debts, claims, and demands of every kind and nature whatsoever which I now have or which may arise out of or in connection with my trip or participation in any other activity. The terms here of shall serve as a release, indemnification, and assumption of risk for my heirs, executors, and administrators, and for all members of my family, including any minors accompanying me." The release included language at the end requiring the plaintiff to pay the attorney fees of the defendant. The court entered judgment on behalf of the defendant for the amount of the attorney fees.

The case in Krazek must be balanced by the West Virginia Supreme Court opinion in Murphy vs. North American River Runners, Inc. In this case, the court ruled that a release could not be used to bar a claim for negligence. The reversal was based on the recent enactment of the West Virginia Whitewater Responsibility Act. The court stated that the act created a claim for breach of statutory safety standards and a release would not bar a claim for negligence.

Absent the allegation of a violation of a statute, the court agrees that: language in a pre-injury exculpatory agreement or anticipatory release stating that a defendant is relieved in effect from all liability for any future loss or damage is sufficiently clear to waive a common-law negligence action, even though the language does not include explicitly the words "negligence" or "negligent acts or omissions"; these "magic words" are not essential to a clear waiver of the right to bring a common-law negligence action, if the contract as a whole and the circumstances at the time of its execution indicate that both parties intended that waiver.

In the last case, Saenz vs. Whitewater Voyagers, Inc., the decedent had signed up for a three-day raft trip on the Middle Fork of the American River. On the last day of the trip, the participant drowned. On the first day of the trip, the decedent and friends were met by employees of Whitewater Voyagers and driven to the put-in site. At the put-in, the decedent and other guests were given a "Release and Assumption of Risk Agreement," and the trip leader gave a safety talk. Later the first day, the decedent swam in calm deep water. At the rapid where the decedent died, he was given the opportunity to scout the rapid and declined. Finally, he was asked twice if he was sure that he wanted to run the rapid and each time he answered affirmatively.

The court looked at the document and held that an exculpatory agreement must clearly and explicitly express the intent of the parties. Quoting National and International Brotherhood of Street Racers, Inc. vs. Superior Court, the court stated: "However, we must remember that to be effective, a release need not achieve perfection.... It suffices that a release be clear, unambiguous, and explicit, and that it express an agreement not to hold the released party for negligence."

The court commented on the fact that the release used the words "hold harmless" rather than "release" and did not explicitly mention death or drowning, but stated, "These drafting 'imperfections' do not, however, render the release ambiguous."

The court went on to say, "Without question, the risk of death by drowning is a risk inherent in whitewater rafting and apparent to anyone about to embark upon a three-day recreational rafting trip. The release was valid. Defendant expressly assumed the risks that led to his death."

The California court refused to hold the defendant liable when he (the decedent), had signed a written document assuming the risk and had obviously been informed of the risk several times throughout the trip. The signed document and his previous water, swimming, and rafting experience raise the same issues decided in the California court. The release in this case expressed the intent of the parties to prevent recovery from any act of the defendant or injury to the plaintiff. The release did not contain the specific magic words, but its effect was to notify the plaintiff of risks and relieve the defendant of liability.