By Doyice Cotten
The BIGGEST change in Waivers & Releases of Liability (9th ed.) is the way in which states are classified according to the waiver law in the state. In the last few editions, each state was classified as Lenient, Moderate, or Strict based on the language used by the courts, court rulings, and statutes. Lenient meant that the standards required by the courts for enforcement were near minimal – in other words, the courts seemed to have a permissive attitude toward enforcing waivers. One problem was that the courts’ language and the courts’ rulings did not always seem to be in sync. Also, whether a state enforced parental waivers was just a factor in the classification (i.e., a state in which parental waivers were enforced would get a more lenient classification – a factor that might distort the true classification).
We addressed the classification of states in an entirely different way this time. We decided that users and writers of waivers were not really interested in the strictness of the courts of a state – we felt what they were really interested in is “What is the likelihood that a moderately well-written waiver will be enforced if it is challenged in court?” Each state was placed into one of four categories of likelihood that a waiver would be enforced: Excellent (9 states), Good (29 states), Fair (9 states), and Poor (7 states). The Poor category includes states that do not enforce waivers as well as states that have such limitations on waivers as to make enforcement very unlikely. [If you are mathematically inclined and wonder if President Obama was indeed correct when he said there were 54 states, it is actually because we included Puerto Rico, Virgin Islands, District of Columbia, and maritime law.]
So we looked at what courts said…, but we looked more closely at what they did. Courts sometimes “talked” strict standards, but then enforced weak waivers. Other courts claimed strict standards and, subsequently, rarely enforced a challenged waiver. We found that, in some states, waivers were frequently enforced in the past, but have been rarely enforced in recent years; and we found the opposite — where states were enforcing waivers more often than in the past. In some states, statutes were important factors. All in all, we feel that our new classification will be more useful to our readers.
In addition, we established a system that yielded one classification for parental waivers and another for adult waivers. The categories were the same as for the adult waivers, however, they were also differentiated on the basis of whether the state courts enforced parental waivers for 1) non-profit school/community entities, 2) commercial entities, or 3) for both. [We have found parental waivers for at least some activities are enforced in 24 states.] The classification of states for adult and parental waivers (and much more) can be found in Waivers & Releases, 9th ed.
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