Re: Release form
James H. Moss (JHMoss@LAWYERNET.COM)
Fri, 18 Sep 1998 13:37:25 -0600
IF YOU BELIEVE THAT A RELEASE IS A WORTHLESS PIECE OF PAPER YOU NEED TO REED
The way it was explained to us by the attorney who wrote the
document, If a "permission slip" states clearly the activity and
outlines the parameters, along with proper medical forms and trip
permits, limited liability protection is provided. But even with this, as
with a full release, true total (for that matter probably partial)
protection is a fallacy.
This attorney is wrong. This is a pretty tough statement to make, unless as
an attorney I am willing to put it all on the line. I AM! I know what I am
talking about because this is the type of law I practice. I write releases
for a living and I defend them in lawsuits.
If you don't mind, I would love to talk to this attorney. Could you please
relay this information to him or get me his Name and Phone Number.
If I gave the impression that this was the whole of the document, I
apologize. I was offering a small segment as an example to show
areas where limited liability for a specific situation could be included.
Again, I think we are in agreement that a true release is not possible.
Please privately send me the entire document.
But, when discussing what would happen if for some reason a suit
was filed, these small pieces would help in showing that reasonable
planning took place. Along with trip permits, letters to parents
showing full disclosure of plans for the trip would also be helpful.
That may be true, however, that will not provide a defense to a lawsuit.
That only shows that as unit leaders that you are good people. A jury will
take that into consideration when making a decision. A release prevents a
lawsuit. A release can be used to throw the lawsuit out, before trial.
There is a big cost and time difference here that makes them worth their
wait in gold.
In reality, I think you would agree, very little difference does exist.
The purpose of permission slips, signs in McDonalds playgrounds
and waivers at bungee jumps are designed more to discourage
litigation then offer legal protection from it.
WRONG! A major difference exists. A release bars victory by the plaintiff.
A permission slip at best might prove support for the standard of care at a
trial. These maybe legal principals that are hard to comprehend but I am
going to trial.
A release would cost you $15 to $25,000 to win a lawsuit with. A permission
slip will cost you $100,000 and you could still lose.
A release tells the parent exactly what can happen to their child. A
permission slip tells the parent they are giving control of the child to
someone else, temporarily.
The following are Appellate or Supreme (top) Court cases where a release was
used to prevent a trial and the release and the idea of a release where
upheld on appeal.
Blanc v. Windham Mt. Club, 115 Misc. 2d 404, 454 NYS 2d 383 (1982) aff'd, 92
A.D. 2d 529, 459 NYS 2d 447 (1983) ski club, exculpatory clause
Blide v. Rainier Mountaineering, Inc., 30 Wash. App. 571, 636 P.2d 492
(Wash. App. 1981) [Mountaineering}
Geise v. Co. of Niagara, 117 Misc. 2d 470, 458 NYS 2d 162 (1983) toboggan
Heil Valley Ranch v. Simkin, 784 P.2d 781 (Colo. 1989) action by plaintiff
against stable when horse she was riding reared and she fell
Saenz v. Whitewater Voyagers, Inc., 276 Cal.Rptr 672 (Cal.App. 1 Dist. 1990)
The Saenz case, the guide of the mulit day whitewater rafting trip was
drinking and doing illegal drugs and firewalking the night before with the
clients. The next day the client drowned on the trip. The court upheld the
release as a complete bar to a lawsuit. There was no trial.
Except for Texas, Montana, New York and Virginia releases have been upheld
in ever state. There is a bad rumor going around that releases are
worthless sheets of paper. They are not. I have been involved in 12
lawsuits were we used a release as the defense. We won 11 of the 12. The
twelfth one, the court said the guide statements about what to do voided the
Another reality is that the two of us are now probably boring the list
to tears if we continue much longer so, I think we can agree by
telling everyone that offering safe activities and a watchful eye are
your only true possibilities of protection, not current "permission
slips" and "release forms".
WRONG, WRONG, WRONG. AND A PRETTY STUPID STATEMENT TO BOOT.
I will not stop on this thread because I cannot allow misinformation to be
spread. As a parent you should know that signing a release bars recovery in
several cases by you as a parent. Maybe not as a minor, but the parent
cannot recover their damages.
As a unit leader, you need to know that a release is a valid and useful
document you cannot use to explain exactly what is going on to your youth
parents and contractually agree in advance who is going to bear the cost of
an injury of the youth.
The best book on the subject now is a serious of three books by Betty van
der Smissen. "Legal Liability and Risk Management for Public and Private
I also run two day seminars on how to write releases and manage accidents
for outdoor programs. This is the law I practice. I know where of I Speak.
James H. Moss 303-980-5353
Attorney at Law 303-989-2316 Fax
12340 W. Alameda Pkwy. JHMoss@Lawyernet.com
Lakewood, CO 80228-2841
Terry Howerton Sakima Group, Inc. SCOUTER Magazine Kansas City