By Rick Conner
Part 3 of 3
Rick Conner is an attorney with McGuireWoods in Charlotte, N.C. This is an excellent summary of North Carolina waiver law, originally published in 2008. Thanks to Rick for granting permission for this reprinting. DC
Tips for Making Releases and Waivers Enforceable
1. Avoid ambiguity.
Remember that releases and waivers are not favored by courts and will be strictly construed against the party seeking to enforce them. Be as specific and as inclusive as possible about what types of claims the release is intended to cover, and what persons or entities the release is intended to protect. For example, the release in Waggoner provided that the jet ski renter “assume[s] all risk of accident or damages to her person … which may be incurred from or connected in any manner with [her] use, operation or rental of the craft,” and that she released the rental company from “all claims, demand, actions, cause of action, and from all liability for damages, losses or injuries that may arise from [her] use of the craft.” 44 The release in Brown v. Robbins specifically released vehicle owners, drivers, and others connected with the race from negligence claims by the plaintiff. 45 It is always a good idea to specifically mention that the release is intended to cover claims of negligence.
2. Make the release language conspicuous.
Do not bury the release language in the middle of a paragraph or in small print. Instead, draw attention to the language by making it conspicuous and obvious through the use of bold, underlined, or capitalized lettering. For example, in Waggoner, the court noted that the waiver signed by the plaintiff was titled, in all capital letters, “WAIVER AND ASSUMPTION OF RISKS.” 46 The plaintiff’s attention was drawn to this clause as illustrated by the facts that she had to write her name in the first sentence of the clause and that she signed the document immediately below the clause.” 47
3. Include a parent’s signature and indemnification language for minors.
Because a minor lacks the legal capacity to form a binding contract, 48 a release executed by a minor is not enforceable. Many courts have also held that a parent or guardian cannot release a child’s cause of action without court approval. 49 Other options may be available to avoid liability in such situations, such as asking the parents of the minor sign a covenant not to sue the host facility or enterprise on behalf of themselves, and to agree to indemnify and hold harmless the host facility or enterprise if the minor should bring a personal injury lawsuit against it, as this could deter legal action in the event of injury. North Carolina courts have not ruled on the enforceability of such an arrangement, however.
4. Get the release signed up front.
Have the participant sign the release prior to admission or commencement of the activity, so that you will have a stronger argument that his or her admission or participation is the consideration for the release. It is also a good idea to expressly recite in the language of the release that the participant’s admission or participation is his or her consideration for executing the release. Encourage the participant to read the release and give him or her plenty of time to do so, to lessen the risk that the participant will argue that he or she signed the release based on fraud or duress.
5. Be careful not to waive your release rights.
A valid and enforceable release can be waived by a host facility or enterprise if it is found to have “intentionally relinquish[ed] a known right, advantage, or benefit.” 50 [S]uch intention to waive may be expressed or implied from acts or conduct naturally leading the other party to believe that the right has been relinquished.” 51 In Johnson v. Dunlap, the North Carolina Court of Appeals found that the defendants waived their rights to enforce a pre-race release signed by a driver who was hit by a vehicle in the pit area when they visited the plaintiff at the hospital after the incident and had him sign a new release in exchange for a payment of $1,500. 52 The court also held that it was error for the trial court to grant judgment notwithstanding the verdict to defendants on the basis of the second release, as there was ample evidence to show that the plaintiff was not mentally competent at the time he signed the second release due to his hospitalization and the pain medication he was taking at the time.53
If your sport is not subject to the public interest exception or otherwise “heavily regulated” by the State of North Carolina, making liability releases and waivers a part of your standard practices and procedures may prove valuable in helping to minimize the risks you face from injuries to participants and observers.
44. Waggoner, 1998 WL 163811 at *3.
45. Brown, 2007 WL 3256866 at *3.
46. Waggoner, 1998 WL 163811 at *3.
48. Creech ex. rel. Creech v. Melnik, 147 N.C. App. 471, 556 S.E.2d 587 (2001).
49. Walter T. Champion, Jr., Fundamentals of Sports Law § 8:3 (2007) (citing Doyle v. Bowdoin College , 403 A.2d 1206 (Me. 1979). See generally Richard B. Malamud and John E. Karayan, Contractual Waivers for Minors in Sports-Related Activities, 2 Marq. Sports L.J. 151 (1992).
50. Johnson v. Dunlap , 53 N.C. App. 312, 316, 280 S.E.2d 759, 762 (1981).
53. Id. at 317, 280 S.E.2d at 763.
Photo Credit: Thanks to Taber Andrew Bain on Flickr.