Written waivers and releases (generally, here, a “Release”) have become ubiquitous in the American way of life – axe throws, bounce houses, rock climbing parks, mechanical bulls, little league registration, school activities, soccer clubs, trampoline parks, church events, etc. Americans sign Releases all the time and few who sign likely take the time to actually read, much less appreciate, what it is they are signing.
For the event organizer, it is usually better to have a well-crafted Release and not need it, than to need one and not have it. Whether to include and administer a Release for an event or other business activity is a business decision.
For the entity desiring to install a Release into an activity’s execution, the Release should be carefully tailored to address the specific activity and risks involved. For example, if the Release contains an assumption of risk, the risks should be – from a best practices perspective – updated on a case-by-case basis to reflect the actual activity made the basis of the Release.
For sports activities (for example), common risks include falling, collision with other players or objects, exposure to temperature extremes or inclement weather, fatigue, dehydration, failing to play safely or within the limitations of one’s abilities, negligence of participants or others. Other activities, such as mechanical bulls or rock climbing, may have other or different risks to disclose.
The actual release provision is important. Some Releases purport to release certain individuals from their own negligence or even gross negligence or willful misconduct. The greater the scope of the release provision, the greater the scrutiny that may be applied when it is sought for enforcement. Also, many times a Release provides that the signer is releasing or waiving claims of or for another, but in reality, it is someone else, such as the signer’s minor child, who is the actual participant in the activity.
Under current Texas law, there is some judicial authority that may serve to prohibit parents from releasing claims that their children may have in regard to injuries suffered in an activity. That is, the release the parents may sign may be unenforceable as to the child’s claims arising from the activity. The Texas Supreme Court has not directly weighed in on that issue, as of yet, but courts of appeal have addressed the issue in varying ways. See Munoz v. II Jaz Inc., 863 S.W.2d 207, 290–10 (Tex. App.–Houston [14th Dist.] 1993, no pet.) (holding that the Texas Family Code, which grants to the parents of a minor child the power to make decisions of substantial legal significance, “does not give parents the power to waive a child’s cause of action for personal injuries”); see Tex. Fam. Code § 151.001(7) (providing that “A parent of a child has the following rights and duties: . . . (7) the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child[.]”).
Also, many releases contain indemnification provisions. Indemnity provisions are also closely scrutinized by Texas courts, especially where the scope of indemnity extends to claims arising from the negligence of others, not just the signing participant. Font size, font location, font color, and scope of terms all can play a part in a court finding that the indemnification is unenforceable.
Given that a Release may be construed as a contract, general contract principles will usually apply in the interpretation and construction of a Release. Therefore, in a best-case scenario, the Release should include provisions such as choice of law, severability, venue for disputes, and other “standard” terms and conditions that will better ensure enforceability or provide further benefit to the releasees and the entity that requires the participants to sign the release.
There is no substitute for preparing for, supervising, and executing an activity in a commercially reasonable manner. And, the event organizer should always consider being adequately insured with general liability insurance and/or event-specific insurance to mitigate liability to the organizer and its representatives.
