Common Characteristics of
Effective Waivers/Releases:
Dissecting the Elements
#IRMI2017
An effective risk management technique for managing the risks of
equine and livestock activities is well-structured contracts, releases,
and waivers. This session will define waivers and releases and review
the extent to which liabilities can be released or waived. Suggestions
for well-worded releases will also be covered as well as the impact of
releases and waivers on insurance requirements and the coordination between insurance coverage and releases/waivers and contracts.
Copyright © 2017 International Risk Management
Institute, Inc.
www.IRMI.com
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Notes
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LIABILITY WAIVERS:
Deconstructing the Elements
by Julie I. Fershtman, Attorney at Law
www.equinelaw.net • www.fershtmanlaw.com • www.fosterswift.com
Here are 16 common characteristics of effective liability waivers/releases and pointers. Please remember
that all states differ as to how these documents are enforced.
1.
Readability. A release is more likely to be enforced if written in clear, straightforward language.
Improve “readability” by breaking the document into paragraphs instead of 1 or 2 long ones.
2.
The Title. Let the reader know that he or she is signing a release. Entitle it at the top (as
appropriate by state law) a “RELEASE OF LIABILITY” or “WAIVER OF LIABILITY” or a “______ [specify
activity such as boarding, instruction, etc.] AGREEMENT AND LIABILITY RELEASE.”
3.
The Parties Being Released. Mention the business(es) or individual(s) whom the guest, visitor,
or customer is releasing as well as people or businesses related to them, as appropriate.
►
For corporations and LLCs, consider mentioning that the other party is releasing the corporation as well
as its directors, officers, shareholders, employees, and agents or the LLC and its members, managers,
employees, and agents.
►
For organizations, consider also mentioning that the signer is also releasing, for example, affiliated
persons, volunteers, sponsors, and groups.
4.
Who is Signing? Get the signer's name, address, and phone number(s). Specify if the person
signing on behalf of himself/herself as well as his or her minor (under 18) children, legal wards, heirs,
representatives, and assigns. Remember that courts disagree as to whether parents can legally release a minor’s
claims. Have a parent or legally-appointed guardian sign. If possible, have both parents sign.
5.
Risks. List risks associated with the activity (as well as risks of merely being on the premises).
With equine activities, for example, you can include examples of many dangerous things that equines are capable
of doing to people who ride, drive, handle, or are around them. You can’t list everything so consider mentioning
that the signer is not relying on you to list all possible risks.
6.
Releasing Liability for Negligence. The overwhelming majority of states will allow people to
release others from liability due to their ordinary negligence. Releases (where allowed by law) can mention that
the signer is releasing the stable, activity provider, or other person from liability for its own negligence. A few
states actually insist that the document include the word “negligence.” Most states will not allow releases to
avoid liability for gross negligence, intentional wrongdoing, or willful and wanton misconduct.
7.
Draw the Reader's Attention to the Important Language. For longer documents, it can help
to use bold letters in the paragraph where the signer agrees to release parties from liability.
8.
Consideration. What can evidence the parties’ intention to be bound by the document? This
falls, in part, under the legal principle called “consideration.” A release can address this by, for example,
mentioning that the release is intended to be binding at all times when the activity provider (such as stable)
permits the guest, visitor, or customer to enter the property or engage in certain activities (such as receive lessons,
use the facilities, rent a horse, ride on the premises, etc.).
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Julie I. Fershtman, Esq.
2017 IRMI Agribusiness Conference
Page 2
9.
Governing Law. To avoid confusion over what state's law applies, the document can mention
the state whose law will apply. That state should have a reasonable connection to the activity.
10.
Equine Activity Liability Act "Warning" and Other Language. Several of the 47 state
equine/farm animal activity liability laws (as of 5/2017), require inclusion of special "warning notices," lists of
risks, or other language that “equine professionals” and sometimes “equine activity sponsors” should use within
their contracts and releases. The differences between these language requirements might surprise you.
11.
Above the Signer’s Signature. This is a good area to acknowledge that the signer has read and
understood the release before signing it. The signer can acknowledge, for example: “I HAVE READ THIS
ENTIRE [NAME OF DOCUMENT] AND I FULLY UNDERSTAND IT.”
12.
Signature. Generally witnesses are not necessary for releases. However, consider adding a line
to allow the operator or employee to counter-sign beneath the guest, visitor, or customer’s signature.
13.
Presenting the Release. Even the best release risks failure if it has been presented improperly.
Give the signer a fair opportunity to read it before signing. Also, people who appear drunk or under the influence
of drugs should not be asked to sign releases or, for that matter, be allowed near your horses or equipment.
14.
Indemnification. The document can have the signer agreeing to indemnify and hold harmless
the stable/farm/professional against all claims, demands, or suits that are brought against the
stable/farm/professional (or either of them) by anyone.
15.
Effective Dates. Avoid guesswork as to when the release is meant to be effective.
16.
Helmets. The release can warn the signer of the importance of wearing ASTM-standard/SEIcertified protective equestrian headgear (helmet and strap) at all times when riding, driving, handling, or near
horses or ponies.
Remember – Details Matter.
These materials and presentation are not intended to constitute legal advice. When questions arise based
on specific situations, consult with a knowledgeable attorney.
About the Author - Julie I. Fershtman is a Shareholder with the law firm Foster Swift Collins & Smith, PC.
A lawyer for 31 years, her practice includes insurance law, insurance coverage, general insurance defense,
business litigation, and equine law. She assists insurers on claims and cases nationwide. Michigan Lawyers
Weekly singled her out as its 2016 “Woman of the Year” for the State of Michigan. She is listed in The Best
Lawyers in America for Insurance Law and Commercial Litigation and has been a Michigan “Super Lawyer®”
every year since 2008. Though a busy lawyer, she is the author of books, blogs, and 400 articles, and her speaking
engagements on legal and insurance issues span 29 states.
For more information, please visit: www.fosterswift.com, www.fershtmanlaw.com, and www.equinelaw.net
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