Using a release, even a well-drafted one, should never substitute for planning with the greatest care.
Events include all kinds of risks that appear reasonable, yet still lead to litigation and, sometimes, liability. Avoiding unnecessary risk isn't enough; organizers have to manage risk. In addition to using common sense, educating attendees, providing warnings, and getting insurance, a number of tools at the planner's disposal can be used to transfer the risk. These include obtaining indemnification, avoiding indemnification of others, issuing disclaimers, and obtaining releases.
This article will focus on releases. Are yours strong enough?
To be effective, releases have to be very narrowly drawn. For example, a release that states “I release you from everything” is not going to work. It has to be quite specific about who is providing the release, to whom it is given, for what purpose and activity, and over what period of time.
A release is especially effective when it includes specific waiver of claim language. Its potential effectiveness is further bolstered by an acknowledgement that the person providing the release is physically able to participate in the event and does so at his or her own risk. However, a release doesn't mean much if the person providing it doesn't get something in return. Thus, the best release also includes some acknowledgement of consideration. Most often, this takes the form of being allowed to participate in the activity for which the release is provided.
Putting it all together, an example of good release language is:
In consideration of my being allowed to participate in the 13th Annual Spear-Catching Contest and intending to be legally bound, I hereby waive, release, and forever discharge any and all rights, actions, and claims that I or my heirs, executors, or assigns may have against the Spear and Javelin Manufacturers' Association and the Overbook Hotel and all their respective officers, directors, trustees, agents, employees, representatives, successors, assigns, and affiliates for death, injury, loss, and any and all damages that I may sustain and/or suffer in connection with my participation in the 13th Annual Spear-Catching Contest. I am physically fit and participate in this activity at my own risk.
There are a few other aspects of making a release effective. One of the most critical is timing.
Asking for a release months in advance of the activity probably won't work. The timing may be too far removed from the activity. But obtaining a release at the time of the event may not be effective either. If everyone is set to race through an obstacle course and at the last minute someone hands out a release form, it just won't work. It may be deemed that there was too much coercion and too little time to carefully assess the impact of signing to make the release enforceable.
So, what should you do? Try to find the middle ground. Perhaps include a notice in your registration material indicating that participants in certain events will need to sign a release and provide the release language. Then, on site, but not right at the event, have participants sign the release.
Another key to effective releases: All participants must be told that they cannot participate without signing a release, and that rule must be strictly enforced. No exceptions should ever be made.
Be prudent in choosing the events for which releases will be required. If an event is “mandatory,” a release is unlikely to be effective. Also, use releases only for events associated with some measure of risk. Finally, using a release, even a very well-drafted one, should never substitute for planning with the greatest care possible.
Jed R. Mandel is a partner in the Chicago-based law firm of Neal, Gerber & Eisenberg, where he heads the trade and professional association practice.