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Why Do Liability Releases Sometimes Fail?

    Part Two of a Two Part Series

    "Releases are not worth the paper they're written on." We hear statements like this all the time. Is this really true? Generally speaking, no. What is true, however, is that releases of liability (also called "waivers") are probably the most misunderstood contracts in the entire horse industry. Part one of this two-part series explored the three main reasons why releases of liability have been known to fail over the years. This part, which concludes the series, offers some simple suggestions to help those who use releases make them more likely to be enforced.

    Improving the Chances for Success by Those Who Use Releases

    Some Key Elements of Releases
    As explained in this author's book, Equine Law & Horse Sense, individuals, professionals, and businesses can consider many elements for releases of liability, such as:
    * Make sure that the release is written in clear, straightforward language.

    * Let the document's own title reaffirm that it is a waiver or release of liability.

    * State the signer's name, address, and phone number and whether he or she is signing as a minor's parent or legal guardian. Include the minor child's name and age.

    * Mention certain inherent risks and consider listing examples but note that you are only providing some examples.

    * Pay special attention to whether the "exculpatory language" in the release (the part in which the signer, on his or her own behalf and/or on behalf of a child, agrees not to sue) complies with any requirements under the applicable state's law.

    * As of January 1998, 41 states across the country have some type of law that addresses liabilities in their horse industries. Many of these laws require certain warning language to be included in contracts and releases. For example, Iowa's law, which took effect in 1997, states that a written contract for professional services or for the rental of an equine or equipment must contain in clearly-readable print the following language:


    Iowa's law also requires professionals to include a separate disclaimer in their contracts. Similarly, some other equine liability laws require including other special notice or disclaimer language in contracts and releases. Read the applicable equine liability law very carefully.

    These are just some elements in releases that can help make a difference.

    Presenting the Release
    How you present the release of liability to others for their signature can be just as important as the language the document contains. Here are some tips for presenting a release:

    * Give the signer a reasonable opportunity to read it. If you leave the room after presenting a release, consider asking the signer: "Did you read it? Do you understand it?"

    * Never trick someone into signing a release. Do not cover up parts of a release before asking someone to sign it.

    * If the signer tells you that he or she is dyslexic or cannot read English, offer to read the release to that person. Make your records clearly reflect that this was done, by whom, when, and at whose request. In a 1993 lawsuit, a court rejected the signer's argument that the release was invalid because he could not read English when he signed it. In that case, the release clearly stated above his signature: "I HAVE READ THIS RELEASE." The court held that the signer was responsible for speaking up about his inability to read, and he could have asked
    to have the release read or explained to him. His failure to do any of these things worked against him, and the release was enforced.

    How Long Does A Release "Last"?
    Should you require someone to re-sign the same release document each time he or she enters your property, rides your horses, or even comes near your horses? Of the many factors that may affect the answer, here are two:

    First, how is the release worded? For example, if the release states that it is effective today only, you will need a newly signed release tomorrow. Or, if the release, by its terms, applies strictly to horseback riding but the guest or visitor is now doing something else, it may be time to present a new release document with different language.

    Second, how does the applicable state's law address the situation? For example, Ohio's law makes waivers used in college or university equine activities valid for 12 months.

    Knowing When to Part With the Release
    How long should you retain a signed release? If you are the one the release protects, it helps to keep the document until you are absolutely positive that the applicable statute of limitations for a lawsuit has expired. When in doubt, file the release in a secure place as long as possible, and do not destroy it until after you have secured advice from a knowledgeable attorney.

    In conclusion, please keep the following in mind:

    • Using a release of liability, where allowed by law, is a powerful effort to avoid liability. The unpredictability of horses and the potential for injury makes releases desirable.
    • Contrary to popular belief, it is legal in most states to release someone else from liability from the consequences of that his or her own negligence. However, the manner in which the release says this will receive intense scrutiny in a legal challenge.
    • A release is never a substitute for good insurance. Even if you use the best possible release, the need for insurance remains strong. People who sign releases can, and sometimes do, sue.
    • Even though most states will enforce releases of liability, there is never an absolute guarantee that a court will enforce your release. As part one of this series explained, there are three main reasons why some releases of liability have failed over the years.

    This article is not intended to constituted legal advice. Where specific questions arise, be sure to consult with a knowledgeable attorney.

    About the Author

    Julie I. Fershtman, Esq.
    Foster Swift Collins & Smith PC
    32300 Northwestern Hwy., Suite 230

    Farmington Hills, MI 48334

    Phone: (248) 785-4731
    Fax: (248) 538-2093

    © 1998 Julie I. Fershtman, Esq. All Rights Reserved