Release of Liability

[MFH]

Mr. Mattson,

I recently started an afterschool karate program at an elementary school. There is some confusion about whether I am covered by the school system's insurance. The program coordinator asked me to send a Release of Liability to the parents (shown below). I found this release on the web and modified it for my circumstances. I've heard that these releases are worthless, yet many companies use them. Your thoughts please.

MFH
RELEASE FROM LIABILITY

IN CONSIDERATION of being permitted to participate in John Doe's karate classes at ANYWHERE, the undersigned hereby agrees to the following:

I agree to indemnify, defend, hold harmless and release John Doe, his elected and appointed officers, agents, employees, and volunteers from any and all lawsuits, damages, claims, judgements, losses, liability or expenses arising out of (1) the death or personal injury or property damage to, myself, my child or my ward, which may be sustained while participating in John Doe's karate class or any activity coordinated by John Doe, or (2) any death or injury which results or increases by any action taken to medically treat me, my child or my ward. All of the terms above shall apply whether or not caused by the alleged negligence, whether active or passive, or any acts or omissions of John Doe, or any of his elected or appointed officers, agents, employees or volunteers.

I also understand that John Doe does not carry insurance to cover participants in the activities in which I, my child or my ward am/is participating. I understand there are risks associated with these activities, and I assume the risk of any injuries that I, my child or my ward may sustain during any of these activities.

I have read, understand and approve this RELEASE FROM LIABILITY. IF the participant is a minor, the undersigned parent or legal guardian warrants and represents that this RELEASE, its significance and the assumption of risk has been explained to and understood by my minor child or ward. I hereby declare, under penalty of perjury, that I am the parent or legal guardian of the named participant.


Signature of Participant (of any age):

Date:


Date: ___________
Signature of Parent/Guardian (if Participant is a Minor):


In the event of sudden illness, accident, or injury which may occur while my child or ward, above identified, is engaged in an activity supervised or sponsored by John Doe, his employees, agents or volunteers, when neither the parents nor guardians can be contacted, I hereby give my consent for emergency medical treatment as shall be necessary under the circumstances by any medical care provider licensed under the laws of the State of ANY-STATE.

Signature of Parent/Guardian (if Participant is a Minor):

_____________________________________ Date: ____________

PARTICIPANTS MUST ALSO SIGN BELOW

I sign this statement below, because:

1.I know that all of the activities in John Doe's Karate Class are hazardous recreational activities;

2.I know there is the risk of injury or death if I participate in any of these activities;

3.I voluntarily participate in the activities of the John Doe Karate Class and I sign my name below so that I may participate - I can
choose not to sign this agreement by choosing not to participate;

4.I agree that if anything happens to me while participating, including injury or death, I release John Doe and any of his employees from liability; and

5.If I am injured while participating, I agree that anyone who provides medical assistance shall not be liable if they cause my death, increase my injury or cause additional injury.

Signature of Participant: ___________________________________________

Date: ________________________

[gmattson]

I don't feel qualified to answer your question Mike. A lot probably rests on the state laws. Van Canna can probably help out the most, but would like to hear from some of those legal guys and gals who promised to participate in this forum!!!

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GEM

[Van Canna]

In general , a person cannot contract away his common law liability ! In Some states , assumption of risk is not a defense ! Also the child will always retain the right to sue independent of any contractual agreements once he becomes emancipated !


These hold harmless and indemnification agreements are very tricky depending on the peculiar laws of each state , the individual joint tortfeasor statutes etc. Also they are only as good as the financial clout behind the agreement !

A home owner's liability policy may extend protection to MFH if he is not getting paid to teach [ no business pursuit ]-
{ check with the agent} !

Best to spend a few hundred bucks for a lawyer versed in these matters in the subject State ! If the agreement is worth wile , then the attorney can draw it up with the best language ! You cannot afford to play games with such potential exposure !

See a lawyer ,[ your state] do not rely on hearsay information !

Van Canna

[MFH]

Mr. Van Canna,

I am being paid to teach and, based on your reply, will contact my business attorney forthwith. Thank you for the insight.

Sincerely,

MFH

[CPL]

Hello from bermuda. I concur with Van Caanan and what he has had to say about ones liability under a typical sports release. Get a lawyer in your State to advise you. Each State I am sure has its own particular statutes.

I can say that you are dealing in an area which at common law (or the law of the land as set down over the years by the decisions of the courts) is known as "volenti non fit injuria" or "he who consents cannot receive an injury"

Where a plaintiff or the individual filing a suit relies in that suit on a breach of duty to take care owed by the defendant to him/her it is a good defence to that suit at common law that the plaintiff consented to that breach of duty or knowing of it, voluntarily incurred the whole risk entailed by it. In that situation the plea of volenti non fit injuria would apply.

The application of the defence and in order to establish it the plaintiff must be shown not only to have perceived the existence of danger but also to have appreciated it fully and voluntarily accepted the risk. This would be a question of fact to be decided on the evidence. Quite a bit of the common law regarding this area concerned automobile cases and whether passengers in the car travel at there own risk and are to be viewed as accepting the risks associated in being a passenger in a car. What about if the driver is drunk and you know it? Later on that area.

In the sporting arena a person engaged in playing a lawful sport takes upon himself the risks incidental to being a player and has no remedy by action for injuries received in the course of the game unless they are caused by some unfair act or foul play.

That is the general statement of law from the realm of the common law. That is the situation regardless of any type agreement purporting to exclude liability. If it is found on the facts of the case that one voluntary accepted the risk (and not simply that one had knowledge of the risk) then the plea of "Volenti" can be raised and is a valid defence to a plaintiff's claim for damages.

Now that you know as much as I in this area of Volenti you wonder about the legality of an agreement to exclude or restrict liability under contract. In the UK jurisdiction we have an "Unfair Contract Terms Act" which is a piece of legislation which applies to liability for negilgence, which under the Act is a breach of any common law duty to take reasonable care or excercise reasonable skill.

A person to whom the Act applies cannot by reference to any contract term purport to exclude his liability for negligence. That Act did not abolish the defence of volenti non fit injuria. Basically you cannot contract out of liability for your own negligence.

In the dojo here in bermuda i teach once twice a week and my moto is that i owe a duty to the students to be professional. If I act in a negligence manner or depart from the standard of care expected of a yondan then I can expect to be sued regardless of what document is signed by my students. Volenti wouldn't apply either for the reason stated above.

If a student is injured in the normal course of a class then I am protected by the students voluntary acceptance of the risk involved in a karate dojo setting. I like to ensure on the evidence (if it got to trial) that there was full knowledge of those risks. For this reason it is more important in this jurisdiction to have a document signed outlining that the student has had an introductory class and has had explained to him/her the types of injuries one can expect in a dojo setting. Remember for Volenti to apply it must be found on the evidence that the student perceived of the danger and accepted it.

So thats it from this jurisdiction. Hope it wasn't confusing and that you know a little more about Volenti and Contracts attempting to exclude liabilty for neglience. i would be interested in hearing what the US position is when you have taken your advice

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Chris LaVigne

[gmattson]

Thanks Chris. That is the best explanation I've heard so far on instructor liability. Since all of it is common sense, it probably won't apply in Massachusettes.

Hope to see more of your legal wisdom on this forum in the future.

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GEM

[MFH]

Mr. LaVigne,

An excellent presentation! I will let you know as soon as I have information for New Mexico. It should be interesting to compare. The sample document shown above is for California.

Thank you for contributing.

MFH