Please Release Me - Lawyers

R eleases, waivers of liability, who is injured. approach to releases in personal injury
assumption of risk agreements While riding motocross at his local actions, combined with similar decisions in
and prospective exculpatory other jurisdictions, trial lawyers should
track, Michael Rogers crashed into the

covenants—these are all words bucket of a front-end loader that Wallace aggressively challenge any argument that

expressing the singular concept that an Saunders, the track operator, improperly attempts to insulate a defendant from lia-

injured party cannot be made whole hid behind a tabletop obstacle. Rogers bility based on a release, especially when

because he signed a piece of paper. And use shattered both of his legs and brought suit the injured client is a minor.

of those words is becoming more and more against Saunders and his track. Saunders

prevalent. It is the rare activity that does raised the defense that Rogers’ claim was What Do
not require a participant to sign a release or barred because he signed a document titled Releases Limit?
that has one preprinted on the back of an “Release and Waiver of Liability,

admission ticket. Assumption of Risk and Indemnity Although Arizona jurisprudence tradition-

The circumstances surrounding the Agreement” before riding. The release ally has recognized a strong policy of free-

reading of the release dom of contract,

are generally the there are

same. Moments instances in

before starting an which public pol-

activity, a dense doc- icy considera-

ument is presented tions for preserv-

for signature. The ing an obligation

only explanation of care about one

from the provider person to anoth-

about the document er outweigh tra-

is that it is “a formal- ditional regard

ity” or “procedure.” for a freedom of

Worse are the cases contract. The

where the release is Arizona Supreme

preprinted on the Court has ruled

back of an admission that contracts

ticket—where mere intending to

entry into a facility release one’s self

consents to all but from liability

the most egregious Please must be strictly
acts. Release Me
construed against
Arizona law disfa-
vors these attempts the enforcing
by defendants to
party.2 Our

Supreme Court

avoid responsibility has recognized

for actions, and our Prospective Exculpatory Covenants in Arizona that, “The law

courts examine disfavors contrac-

releases with a skepti- tual provisions by

cal eye.1 In personal BY DEV K. SETHI which one party

injury cases, especial- seeks to immu-

ly, trial lawyers nize himself

should take an aggressive approach and contained language that insulated Saunders against the consequences of his own

challenge the validity and application of the from liability—even liability created by his torts.”3

release. Recent developments, both in own negligence. Does this release protect And under long and well-established

Arizona and other states, provide support Saunders from liability? Would it make a Arizona law, releases only limit a defen-

for the proposition that unless a defendant difference if Rogers had been a minor and dant’s liability for risks specifically contem-

meaningfully educates a participant as to had his parent sign the document? plated by the release. In Valley National

both the release and the risks involved, the Under current Arizona law, a court Bank v. Tang,4 one of the earliest Arizona

release is invalid as a matter of law. should hold that the release has no applica- cases dealing with the issue of the prospec-

To see the proposition in action, let’s tion—regardless of whether Rogers was an tive release of liability, the court noted, “It

examine the case of a motocross participant adult or minor. Given Arizona courts’ is … necessary that the express terms of the

36 A R I Z O N A A T T O R N E Y M A R C H 2 0 0 3 WWW.AZBAR.ORG

agreement be applicable to the particular Fidel, rejected defendant’s position. In In evaluating the effectiveness of the
misconduct of the defendant.”5 This does strong words, the court stressed the base- release in Morganteen, the Court of
not mean that the release must expressly line point of law that courts are to express Appeals found that for a release to have
list every potential situation. To be valid, great disfavor and skepticism toward application, it must be specifically negoti-
however, the document and the circum- release documents. ated and bargained for. That is a require-
stances surrounding its execution must ment for the application of a release in a
meaningfully educate the signer as to its This is not a point to be taken lightly. If commercial setting, and the analysis in the
effect and scope. a defendant seeks sanctuary behind a personal injury setting must be at least as
release, that defendant must come forward stringent.
Maurer v. Cerkvenik-Anderson Travel6 is with proof that the release was bargained
a good example of this proposition. In for and that even after strictly construing To that end, Morganteen seems to sug-
Maurer, the plaintiff’s signing of a waiver the release against the defendant, it still has gest that for a release to be effective, a
did not constitute an express assumption application. defendant must do more than simply
of risk because the waiver was too general secure a signature on a boilerplate, form
and did not “alert plaintiff’s decedent to The court in Morganteen compared the document. Instead, to comply with the
the specific risks she was supposedly waiv- application and validity of a release in a “bargained for” requirement, it seems that
ing.”7 personal injury tort case with the applica- a personal injury defendant would have to
tion of a release in a commercial tort case, have someone explain to the lay partici-
Maurer involved a young woman who Salt River Project v. Westinghouse Electric pant what the terms of the release
was killed in an accident on a train vacation Corp.10 The Supreme Court of Arizona entailed. Anything less simply does not
package through Mexico. The decedent addressed the validity of a limitation of lia- meet the requirement of the law.
was killed when she fell through the con- bility provision in a commercial case in Salt Furthermore, for a release to have applica-
necting areas between two cars of the train. River Project. In a section of its opinion tion, it would need to be worded in plain
The Arizona Court of Appeals held that titled “Can Liability in Tort be Bargained language to bring its terms home to the
the release in Maurer failed to alert the Away,” the Supreme Court answered with participant. Broad, loosely phrased releas-
plaintiff to the risks being waived. Under a qualified yes.11 In Salt River Project, the es simply can have no application under
Arizona law, the key to enforceability of a Court stressed its reluctance to enforce the current state of the law.
release is the knowledge on the part of the release agreements, stating, “The law dis-
releasor of the exact nature of the agree- favors contractual provisions by which one A Restrictive Approach
ment.8 For the release to be enforceable, it party seeks to immunize himself against to Waivers
must appear that the terms of the release the consequences of his own torts.”12
were brought home to the person signing However, the Court went on to recognize Benjamin v. Gear Roller Hockey
the release, or, if he or she did not know of that sound reasons in a few, discreet com- Equipment14 stands as the Arizona courts’
the provision, that a reasonable person in mercial settings existed to create an excep- most recent comment on the subject of
his or her position would have known of it. tion for the law’s general disfavor. prospective liability releases. The rationale
underlying the holding of the case pro-
Interpreting and However, the Salt River Project Court vides clear support for the very limited and
Applying Waivers made it clear that three conditions would rare application of releases in personal
be placed upon the enforcement of any injury actions.
Perhaps the most well-reasoned and release document:
instructive Arizona case dealing with the 1. that there is no public policy impedi- As a starting point, the court in
interpretation and application of release Benjamin continued to recognize the well-
and waiver documents is Morganteen v. ment to the limitations established rule of law that Arizona courts
Cowboy Adventures, Inc.9 Morganteen 2. that the parties did, in fact, bargain for look upon releases with disfavor out of
involved a plaintiff who was injured while concern that they may encourage careless-
participating in a guided horseback ride the limitations ness. Accordingly, the court recognized
under the watch of defendant Cowboy 3. that the limiting language be strictly the need to construe the language of a
Adventures. When the plaintiff brought a release strictly against the party, here the
negligence suit for injuries that Geraldine construed against the party seeking to defendants, relying on it.
Morganteen sustained when she was enforce it
bucked off a horse on a Cowboy Judge Fidel in Morganteen recognized In Benjamin, the court held that in cer-
Adventures ride, the defendant sought that the Arizona Supreme Court placed tain circumstances a defendant can protect
protection behind its “Release and Waiver special emphasis on the second factor in itself from liability by procuring a release
of Liability, Assumption of Risk, and discussing the law of waiver, which signed by the plaintiff that absolves the
Indemnity Agreement.” The court, in a requires “an intentional relinquishment of defendant from liability due to the defen-
unanimous opinion written by Judge Noel a known right.” And the Salt River Project dant’s own negligence. The court, howev-
Court stated, “Tort remedies may not be er, made it clear that such a general release
waived in an unknowing exchange of
forms. … An actual bargain must be made
by those responsible for the transaction.”13

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is disfavored and will apply only in those Imagine if the defendant had been Even More Problems for
specific instances in which the signing cleaning a gun at trackside that accidental- Reliance on Releases
party understands the type of risks covered ly discharged, hitting Rogers. There would
by the release. be no doubt that the release would not In late June 2000, the Colorado Supreme
apply in that situation. The hidden front- Court issued an en banc decision setting
Benjamin is a good example of the spe- end loader is really not that different. out what is really no more than common
cific facts that must be present before a sense. Before Cooper v. Aspen Skiing Co.,16
release can apply. Numerous factors lined The perfunctory scanning and signing however, Colorado courts were silent on
up perfectly such that the court was able to of a release by individuals who engaged in the issue of whether a parent can sign an
follow the law and give effect to a release. activities cannot provide a careless defen- effective prospective exculpatory covenant
Absent the unique confluence of facts, a dant with an absolute shield from respon- on behalf of his or her minor child. In
prospective liability release should not sibility. Unless the terms and application of Cooper, the Colorado Supreme Court
apply in the personal injury context. the release have been meaningfully answered with a resounding “no.”
Indeed, the facts of most cases are much explained to the plaintiff, a release in a per-
closer to those of Morganteen and Maurer. Arizona courts have yet to weigh in on
Courts this issue. Cooper, and the majority of cases
The court enforced a liability release in from other jurisdictions that have consid-
favor of a roller skating rink against the express ered the issue, provide sound, persuasive
plaintiff—a 32-year-old lawyer who had authority that will help an Arizona trial
participated in the sport of roller hockey great disfavor judge reach a just decision until the matter
for 15 years. The plaintiff had deep knowl- makes it to Arizona appellate courts.
edge of both releases and tort law as well as and
the sport of roller hockey. Most important, Seventeen-year-old David Cooper was a
the court enforced the release particularly skepticism fantastic skier. He was an accomplished
because the plaintiff was aware of the competitive ski racer and had been a mem-
nature of the risks involved in roller hock- toward ber of the Aspen Valley Ski Club for sever-
ey, and the cause of the plaintiff’s injury al years. At the beginning of the 1995 ski
was precisely one of those risks—uneven release season, Cooper and his mother signed a
flooring: form titled “Aspen Valley Ski Club, Inc.
documents. Acknowledgement and Assumption of Risk
The court wrote: and Release.” The release from the ski club
Plaintiff was an experienced skater, sonal injury action should have no applica- contained standard language, relieving it
familiar with the risks of roller hock- tion. The plaintiff can, and should, raise from:
ey. He knew that problems with the this issue early on in a motion for partial
skating surface—such as “debris”— summary judgment. Success on this Any liability, whether known or
could cause an accident. The Release motion will mean that the court has either unknown, even though that liability
itself warned participants to inspect rejected this defense in its entirety, or, at may arise out of negligence or care-
the “facilities” for “unsafe” condi- the very least, it has determined that the lessness on the part of persons or
tions, thus providing notice (if such issue is a question of fact for a jury. Either entities mentioned above. The
were needed) that unsafe conditions way, it will limit the defense’s ability to undersigned participant and parent
could exist in the facilities and could posture. or guardian agree to accept all
cause an accident.15 responsibility for the risks, condi-
What does this analysis mean in relation With the Benjamin decision, defense tions and hazards which may occur
to our injured motocross rider? counsel will often express a confidence that whether or not they are now known.
In the case of the adult Michael Rogers, is unfounded. Seizing this issue early will While training for a competitive, high-
the release he signed should be declared give the plaintiff the upper hand as the speed alpine race, on a course designed by
meaningless as a matter of law. Although matter progresses. his coach, Cooper fell and collided with a
Rogers did sign a release document, and tree. He sustained severe injuries including
although he was aware of the risks inherent the loss of vision in both his eyes, and he
in motocross—going down in a corner, brought a claim against several defendants,
overshooting a jump or getting tangled up including his coach and the ski club. The
with another rider—he was unaware of the defendants argued that the release barred
risks of crashing into a front-end loader Cooper’s actions.
hidden on the track. The presence of the
front-end loader in this case is exactly the The defendants were successful at
type of “extraordinary and unknown risk” both the trial court and appellate level. The
identified in Benjamin and Maurer. Supreme Court of Colorado reversed.

Colorado, like Arizona, recognizes the
principle of freedom of contract and the

38 A R I Z O N A A T T O R N E Y M A R C H 2 0 0 3 WWW.AZBAR.ORG

notion that prospective liability releases are without any mention of the specific con- Furthermore, the court held that the
disfavored and must be strictly construed. cerns associated with prospectively releas- fact that a recreational activity involves
Relying on policy that protects minors ing personal injury liability to a minor— some inherent risk of physical injury does
from parental actions that foreclose a that Hohe could not disaffirm the release not justify relieving the operator of a recre-
minor’s rights to recovery, the Colorado because she was a minor. ational facility of a duty of care to protect
court held that, because a parent may not patrons against unreasonable and unneces-
release a child’s cause of action after injury, Given Arizona law and public policy sary risks. Jurors are capable of distinguish-
it makes no sense to authorize a parent to concerns, it is unlikely that an Arizona ing between the risk of injury that cannot
release a child’s cause of action prior to an judge would find Hohe persuasive. be eliminated without depriving a sport of
injury. its essential character and those unneces-
What Cooper suggests for Arizona liti- sary risks that arise as a result of the pro-
The court reasoned that allowing such a gants is that releases signed by parents prietor’s failure to exercise due care for its
result would render meaningless the spe- before their minor children can participate patrons. The court held that the release
cial protections historically accorded in activities are most likely invalid. was void.
minors. For example, in Colorado, like Although no Arizona case addresses this
Arizona, the statute of limitations for a issue, the policies relied on in Cooper and Addressing Releases
minor’s tort claim does not begin to run its supporting cases, combined with in Your Practice
until the minor reaches the age of majori- Arizona’s clear disfavor of releases in gen-
ty. This delayed countdown to a filing eral, suggest that a defendant will have an Releases are standard fare in a variety of
deadline preserves the minor’s rights in the extremely difficult time advancing a tort actions. People sign releases in
event that his or her parents fail to take defense based on a waiver signed by a par- endeavors ranging from apple picking to
steps to preserve them. ent. zoo tours. Activity providers have become
increasingly reliant on boilerplate, convo-
In deciding Cooper, the Colorado Therefore, in the motocross rider’s luted and difficult-to-read documents that
Supreme Court conducted a survey of case, a court considering the issue on an they believe insulate them from all but
other jurisdictions’ approaches to this early motion for partial summary judg- their most egregious acts. Some releases
issue. The overwhelming majority of juris- ment need not even reach the standard even attempt to provide protection for
dictions that have considered the issue analysis of Morganteen, Maurer and gross negligence and intentional acts. The
hold that a parent’s attempts to waive a Benjamin before finding that the release validity of these prospective releases must
child’s liability claim are void as they vio- has no application. A minor injured in an be challenged.
late public policy considerations. No fewer endeavor should not be precluded from
than 11 states subscribe to this position.17 being made whole because of the actions Too often these documents are present-
of his or her parents. ed for signature in a cursory manner. When
Parent Waiver Upheld questioned about them, the service
New Mexico and provider is often ill equipped to respond to
At least two states—California and Ohio— Waivers even the most basic inquiries. Signing a
suggest that a parent may prospectively release has become a meaningless hoop
waive a child’s rights to bring a tort action. Practitioners should refer to Berlangieri v. that people step through without a second
Given California’s influence on Arizona Running Elk Corp.,19 a recent New Mexico thought.
courts, practitioners should be aware of case. There, the court held that a waiver of
Hohe v. San Diego School District.18 liability regarding horseback riding was By setting up the process in this way,
unenforceable as a matter of public policy. the defendant seeks to have it both ways.
Sarah Hohe was a 15-year-old junior Berlangieri was injured while riding at a He does not want to invest any time or
attending a public San Diego high school. lodge. The trial court granted defendant’s resources in educating the participant as to
She was injured during a school-sponsored motion for summary judgment, citing the the actual effect of the release, nor does he
hypnotism show. Once Hohe brought suit, waiver the plaintiff had signed. The appeals want to scare away potential customers
the defendants relied on a release signed by court reversed. with an explicit description of the risks. At
Hohe and her father. With little analysis, the same time, he seeks to use the signed
the California Court of Appeals rejected The court held that in determining release as an absolute shield for any legal
Hohe’s argument that the release could whether a waiver is effective to relieve the liability.
not be enforced because she was a minor. commercial enterprise from liability for
The court did not consider the safeguards failing to exercise ordinary care to protect Arizona jurisprudence rejects this
in place to protect minors, nor did it con- patrons, more is at stake than the question approach. Through the discovery stage of
sider the issue of whether a parent can of whether one plaintiff is compensated. A any case involving a release, it is imperative
prospectively sign away a minor’s rights. private agreement cannot nullify society’s to fully explore, both with your client and
Instead, the court simply conducted— interest in deterring conduct that society the defendant, the circumstances sur-
regards as unreasonable.

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rounding the signing of the release. In M A R C H 2 0 0 3 A R I Z O N A A T T O R N E Y 41
addition, it is important to explore how
the defendant came to use the release
involved. Did he hire a lawyer to draft it? Is
it one provided by a trade group? Or is it
simply something that he copied from a
competitor? In any event, it is important to
find out whether the defendant himself has
an understanding of the terms and the
effect of the document.

Once this information has been collect-
ed, it is the plaintiff who should take hold
of this issue. In those cases in which the
defendant has not taken the time to “bring
home” the terms of the release to your
client and where the cause of injury is
something other than the normal and
anticipated risk associated with the activity,
the plaintiff should file an early partial
motion for summary judgment. An aggres-
sive approach to these releases will force
defendants to recognize that a signed
release is not an absolute shield to civil lia-
bility.

Dev K. Sethi is an attorney with Kinerk
Beal Schmidt & Dyer PC in Tucson. His
practice is plaintiffs’ products liability, per-
sonal injury and wrongful death.

endnotes

1. Salt River Project Agric. Improvement &
Power Dist. v. Westinghouse Electric Corp., 694
P.2d 198 (Ariz. 1984).

2. Id.
3. Id. at 213.
4. 499 P.2d 991 (Ariz. Ct. App. 1972).
5. Id. at 994, citing PROSSER, THE LAW OF

TORTS § 57 (3rd ed. 1964).
6. 890 P.2d 69 (Ariz. Ct. App. 1994).
7. Id. at 73.
8. Morganteen v. Cowboy Adventures, Inc., 949

P.2d 552 (Ariz. Ct. App. 1997).
9. Id.
10. 694 P.2d 198 (Ariz. 1984).
11. Id. at 212–215.
12. Id.
13. Id.
14. 11 P.3d 421 (Ariz. Ct. App. 2000).
15. Id. at 424.
16. 48 P.3d 1229 (Colo. 2002) (en banc).
17. Colorado, Connecticut, Illinois, Maine, New

Jersey, New York, Pennsylvania, Tennessee,
Texas, Utah and Washington.
18. 274 Cal. Rptr. 647 (Ct. App. 1990).
19. 48 P.3d 70 (N.M. Ct. App. 2002).

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