By Doyice Cotten

For years there have been three states that prohibit the enforcement of pre-injury liability waivers: Louisiana, Montana, and Virginia. Now there are only two as the Montana Legislature has passed HB0204. Granted, there are a few more states in which courts are rather reluctant to enforce waivers.

Some of the reasoning behind the statute included getting maximal participation and availability of sports and recreational activities for residents and visitors; the fundamental right of people to decide on activities and contracts; and to shield providers from claims resulting from ordinary negligence and the inherent risks of sports and recreation.

The legislature revised Section 1. Section 27-1-753, MCA to read:

“27-1-753. Limitation on liability in sport or recreational opportunity. (1) A person who participates in any sport or recreational opportunity assumes the inherent risks in that sport or recreational opportunity, whether those risks are known or unknown, and is legally responsible for all injury or death to the person and for all damage to the person’s property that result from the inherent risks in that sport or recreational opportunity.

(2) A provider is not required to eliminate, alter, or control the inherent risks within the particular sport or recreational opportunity that is provided.

(3) (a) Sections 27-1-751 through 27-1-754 do not preclude an action based on the negligence of the provider if the injury, death, or damage is not the result of an inherent risk of the sport or recreational opportunity.

(b) This section does not prohibit a written waiver or release entered into prior to engaging in a sport or recreational opportunity for damages or injuries resulting from conduct that constitutes ordinary negligence or for risks that are inherent in the sport or recreational opportunity.

(c) Any waiver or release for a sport or recreational opportunity must:

(i) state known inherent risks of the sport or recreational opportunity; and

(ii) contain the following statement in bold typeface: By signing this document you may be waiving your legal right to a jury trial to hold the provider legally responsible for any injuries or damages resulting from risks inherent in the sport or recreational opportunity or for any injuries or damages you may suffer due to the provider’s ordinary negligence that are the result of the provider’s failure to exercise reasonable care.

(d) Any waiver or release for a sport or recreational opportunity may still be challenged on any legal grounds.

(e) Any waiver or release for a sport or recreational opportunity executed in compliance with this section is not prohibited by or subject to the provisions of 28-2-702.

(4) Sections 27-1-751 through 27-1-754 do not apply to a cause of action based on the design, manufacture, provision, or maintenance of sports or recreational equipment or products or safety equipment used incidental to or required by the sport or recreational activity.”

 

Section 2. Section 28-2-702, MCA, is amended to read:

“28-2-702. Contracts that violate policy of law — exemption from responsibility — exception. Except as provided in 27-1-753, all contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.”

Section 3. Effective date. [This act] is effective on passage and approval.

Some of the most important parts of the statute are emphasized in red. Note that the waiver must list the inherent risks of the activity and must contain a specified “warning” statement in bold. Two limitations are that the waiver will not protect 1) against design and manufacture of equipment or 2) against gross negligence or other extreme actions.