How realistic is a liability release form that says they aren't to blame if you die?

[minor7flat5]

Some folks I know are going on a tubing trip down the Delaware tomorrow. They were required to fill out this release form (Warning: pdf)

(The form expressly states that one cannot copy it in part or whole, so I won’t even quote it here)

It appears to release them from anything at all, even death, even if it is due to their own negligence.

Is this possible? I’m sure that anything dangerous, such as bungee jumping or kart racing, would likely also require such a release form, but is it really possible for a seller of dangerous fun to slip out of their responsibilities this easily?

What happens if they fit a child with an obviously ratty old life vest that fails and causes the kid to drown? Would this flimsy signed form allow the company to get off Scott free? The only thing I can think of is that their usage of “to the fullest extent of the law” allows them to make outrageous claims that might intimidate some folks into not persuing lawsuits, while still allowing the language to stand without being an outright lie.

It sounds an awful lot like those scary EULA terms that rest on dubious legal standing. Is this so?

[Dr_Paprika]

AFAIK, the form is proof that you were aware that some risks are involved. Despite that, release forms do not prevent a successful lawsuit in the event you can prove negligence.

[shefDave]

I know nothing about the situation in the US, but in the UK there are laws that prevent parties from trying to contract themselves out of liability for death or personal injury if caused by negligence.

Unfair Contract Terms Act 1977

2 Negligence liability
(1) A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.

(2) In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness.

(3) Where a contract term or notice purports to exclude or restrict liability for negligence a person’s agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk.

Is this the same in the US?

[Mr.Blue_Sky]

@shefDave

Is this the same in the US?

You can’t sign a contract that gives someone permission to break the law. If the company is found legally negligent, they can (and likely will) be sued.

[Random]

A lot of misinformation here. Some of the responses have a kernel of truth, but that truth is being misapplied, or at least applied too broadly. As it happens, I wrote an article on my state’s law on this topic last month. I’ll try to get back later with more on this topic, but am running late this morning, so this’ll be brief.

@Dr_Paprika

AFAIK Despite that, release forms do not prevent a successful lawsuit in the event you can prove negligence.

As a general rule, this is flat-out wrong in many, if not most states. These kind of liability waivers are enforced by courts, if properly drafted. Negligence is precisely what they waive. However, I am aware of some states that take a different view, and even those states tend to place some limits. For example, pre-event negligence waivers aren’t enforceable in Illinois when applied to certain relationships (doctor/patient, landlord/tenant, for example. Recreational activity waivers are enforced, though, if they meet some basic tests.

@shefDave

Is this the same in the US?

Mostly, no. Some states have a similar rule, but most don’t, at least not one (like the onle you quote) that broadly invalidates all such waivers.

@mr blue sky

You can’t sign a contract that gives someone permission to break the law. If the company is found legally negligent, they can (and likely will) be sued.

No and no. True, contracts that are illegal, or that have an illegal act as their subject, will not be enforced. If you and I bet on a football game, or I hire you to sell my house, neither contract will be enforced in my state, because gambling is illegal, and you (AFAIK, anyway) don’t have an Illinois broker’s license. On the other hand, if I run a (legal) skydiving school, or a volleyball league, or a health club, and have my customers sign a negligence waiver, it’ll be enforced (if it’s properly drafted - again, there are some standards that it has to meet.)

Note: If the tortfeasor’s act goes beyond simple negligence - if the wrongdoing is intentional, or grossly negligent - the situation changes. There, I would agree that most states would not enforce a waiver.

Bottom line - the replies so far in this thread essentially encourage people to sign these waivers without giving them a second thought, because they won’t be enforced. In the US, in most states, that’s bad advice.

This is general information, and not legal advice. I have specifically not addressed the scenario in the OP, because I have no clue about Delaware law, and laws on this topic vary widely among states. Although IAAL, I’m not one in Delaware. Anyone faced with this issue in real llife should consult an attorney in the applicable state.

[Mr.Blue_Sky]

@Random

No and no. True, contracts that are illegal, or that have an illegal act as their subject, will not be enforced.

At the hospital where I work (in Georgia), we have contracts with insurance companies that state the company will pay or deny (with good reason) a claim in 30 days or less. State law requires they do so in 15 days. If the company does not adhere to the contract we can (and have) turned the company over to the insurance commissioner and we were able to get interest paid starting with the 16th day (by law) and not the 31st day (by contract).

The legal firm we use handles cases like this all the time. Usually it takes one letter from them to get an insurance company to fall in line.

[minor7flat5]

Thanks for the responses so far. I appreciate your time Random, and look forward to your additional comments. As you can well imagine, the point was not whether or not to sign the form; the kids’ mothers signed off and they went and had a good time.

I would be interested in what distinguishes negligence that is protected by such a waiver. What would happen in a skydiving school with such a waiver if someone packed a chute improperly?

Do you have links to borderline cases?

[Random]

@Mr. Blue Sky

At the hospital where I work (in Georgia), we have contracts with insurance companies that state the company will pay or deny (with good reason) a claim in 30 days or less. State law requires they do so in 15 days. If the company does not adhere to the contract we can (and have) turned the company over to the insurance commissioner and we were able to get interest paid starting with the 16th day (by law) and not the 31st day (by contract).

The legal firm we use handles cases like this all the time. Usually it takes one letter from them to get an insurance company to fall in line.

And this pertains to a liability waiver, how?

[Mr.Blue_Sky]

@Random

And this pertains to a liability waiver, how?

Not a bit. It refers to my statement that you can’t give someone permission to break the law.

If they break the law by negligent, you can’t excuse them.

[casdave]

In the UK this came under the heading non fit volenti, or, * the risk was willingly taken*, however it has been interpreted to be an illegally unfair contract arrangment, and the root of such judgements come from the

Health and Safety at Work Act 1974,

where those in control of premises have an absolute liability to ensure those premises are safe, and those controlling any activities connected with work have absolute duties, which can be balanced against the standard of reasonable - the legal meaing of the word.

This duty is increased considerably in the

Management of Helath and Safety at Work Act 1999

http://www.cipd.co.uk/subjects/health/general/healthsafetywork.htm

Even recreational activities are covered, and court judgements still place virtually all the weight of proof of compliance on employers because economic necessity compels people to work, and thus risks are said not to be willingly accepted any more.

Merely stating in a contract that individuals should do, or not do certain things that may put them at risk would be regarded as inadequate, unless the contract formed part of an induction safety training course, by those who the court would judge to be competant to deliver that training.

Negligence cannot be waived by a person in control of activities or premises, but there are lots of ways to wriggle around, but when it comes to dealing directly with the public, that wiggle room gets considerably less generous.

[Random]

@Mr. Blue Sky

Not a bit. It refers to my statement that you can’t give someone permission to break the law.

If they break the law by negligent, you can’t excuse them.

This is either incohent, or wrong.

[Mr.Blue_Sky]

You sign the agreement not to hold the company liable for any injuries you may receive.

Turns out they were negligent (safety violations, for example) and because of that, you die or are seriously injured. There should some reasonable expectation that they have taken every precaution to keep you safe. They can still be held liable for violating the law.

You and I can’t sign a contract in which I ask you to kill me. You might do that, but murder is still illegal and you will likely be prosecuted.

[Mr.Blue_Sky]

And having read the document, I wouldn’t sign because of item #2.

[Princhester]

Mr Blue Sky, no offence but you are out of your depth. You’re muddling up all kinds of things as if they are the same when they are, at law, very different critters that are treated very differently. And in doing so you are filling this thread with misinformation.

[Mr.Blue_Sky]

@Princhester

Mr Blue Sky, no offence but you are out of your depth. You’re muddling up all kinds of things as if they are the same when they are, at law, very different critters that are treated very differently. And in doing so you are filling this thread with misinformation.

Sorry, forgot the IANAL.

Sue me.

[Princhester]

I suffered no damage. Perhaps emotional distress

[Mr.Blue_Sky]

@Princhester

I suffered no damage. Perhaps emotional distress

Too bad you aren’t in the US. You can sue for that.