FEATURE LEGAL ARTICLE
Pre-Activity Waivers and
Releases of Liability
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By Stewart H. Diamond and Henry E. Mueller
[This article is a sequel to "The Tort
Reform Act, Park Signs and Warnings,"
which appeared in the July 1987 issue of
Illinois Parks and Recreation.]
Even with the existing and the significant new statutory defenses in the Tort
Reform Act, governmental bodies which
sponsor recreational activities should, for
a number of reasons, continue to use
waiver forms. Because the legislation is
new, there has been no court test of the
law and there is no guarantee that all of
its provisions will stand or be favorably
interpreted by the courts. More important is the fact that not all injuries arising out of recreational activities are
covered by the new legislation. In addition, waiver or similar forms constitute
one very effective method of giving the
notice and warning that may be necessary
under the new hazardous activity provisions of the Act, Section 3-109. Finally,
the waiver and release forms will continue
to play their traditional role of discouraging some claims or lawsuits from even
being filed. Appended to this article are
samples of a waiver, an explanatory introduction for registration forms with
waivers which could be used in program
brochures, and a form stating additional
warnings for aerobics activities which
would be used as a format for informing
participants of the specific risks of "hazardous" activities to meet the requirement
of the Tort Reform Act.
Why Waivers are Useful Even
Under the New Law
As recently amended to include buildings, Section 3-106 of the Tort Immunity Act (Ill. Rev. Stat., ch. 85) provides an
immunity for claims based upon ordinary
negligence. While Section 3-106 is helpful, its immunity extends only to liability based upon "the existence of a condition of any public property intended or
permitted to be used for recreational
purposes." This leaves a large category
of potential claims where only ordinary
negligence need be proven. Not covered
by this immunity are activities such as bus
trips or outings to places not on government property and injuries which arise
out of programs themselves rather than
a "condition of property." For example,
a liability claim could be based upon negligent driving of a bus. This claim would
not be covered by Section 3-106. A waiver
executed by an adult participant would
effectively release such a negligence
claim. Similarly, a negligence claim
could be based upon the form of aerobic
instruction given in a recreational program, or upon the manner of conducting
a program. Those claims would generally
not fall under the protections of Section
3-106 because they would not relate to
the "condition of any public property."
While some of the claims described
above probably can also be defended by
the use of the immunity found in Section
3-108 for a "failure to supervise," a properly drafted release and waiver form will
provide an absolute defense.
Do Waivers Work?
Many attorneys and governmental officials who have not reviewed the most
recent cases on the use of waivers may
question whether the courts will actually
dismiss the cases of seriously-injured
adults who have been injured in activities
for which they have signed a release and
waiver form. Illinois is fortunately one of
the States in which courts have broadly
accepted pre-occurrence waivers, even to
the extent of allowing local government
entities to win dismissals of lawsuits on
the basis of the liability waivers. Two
recent cases have upheld the validity of
waivers on behalf of local public bodies.
Radloff v. Village of West Dundee, 140
Ill.App.3d 338, 489 N.E.2d 356, 95
Ill. Dec. 135 (1986), affirmed the dismissal of a complaint by a police officer applicant who sustained injuries in a physical aptitude test after having executed a
waiver. Poskozim v. Monnacep, 131
Ill.App.3d 446, 475 N.E.2d 1042, 86
Ill. Dec. 663 (1985), upheld a dismissal of
the claim by a plaintiff who was injured
in a parachute jump/skydiving program
sponsored jointly by various public bodies
and independent contractors. The court
even allowed dismissal of all the public
entities which were not individually listed, and only identified as "all persons
whomsoever directly or indirectly liable"
in a release specifically listing the independent contractor. Both the Radloff
and Poskozim cases also denied plaintiffs
public policy challenges to the waivers.
A release form is actually a kind of
contract. In effect, the contract provides:
The park district, or other local entity,
will let you participate in this program
if you waive some or all of your possible
claims for damages in the event that you
are injured. Like all contracts, there are
a variety of court cases dealing with
whether the language of a particular
waiver document actually effects a release
or whether it was procured through fraud
or represented a mutual mistake of the
parties. On the whole, the court decisions
have strongly supported the legitimacy
and validity of using the releases. See,
generally, and for comparison, Larsen v.
Vic Tanny Int'l., 130 Ill.App.3d 574, 474
N.E.2d 729, 85 Ill. Dec. 769 (1984); Sexton v. Southwestern Auto Racing Ass'n. Inc., 75 Ill.App.3d 338, 394 N.E.2d 49,
31 Ill. Dec. 133 (1979); Russo v. The
Range, Inc., 76 Ill.App.3d 236, 395
N.E.2d 10, 32 Ill. Dec. 63 (1979); Kubisen v. Chicago Health Clubs, 69 Ill.App.
3d 463, 388 N.E.2d 44, 26 Ill. Dec. 420
(1979); First Financial Ins. Co. v. Purolator Security, Inc., 69 Ill.App.3d 413,
388 N.E.2d 17, 26 Ill. Dec. 393 (1979);
Owen v. Vic Tanny's Enterprises, 48
Ill.App.2d 344, 199 N.E.2d 280 (1964).
The courts of other states have also recently upheld waivers when there are no
public policy considerations and no spe-
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cial relationships, such as with common
carriers or public utilities, that might invalidate the agreements. See also, Barnes
v. New Hampshire Karting Ass'n., 128
N.H. 102, 509 A.2d 151 (1986); Gimpel
v. Host Enterprises, Inc., 640 F.Supp.
972 (E.D. Pa. 1986); Malecha v. St. Croix
Valley Skydiving Club, Inc., 392 N.W.2d
727 (Minn.App.Ct. 1986).
The problems inherent in the interpretation of release and waiver forms can be
overcome by having the forms written, to
the extent possible, in clear and simple
lay person language. Some mystery as to
the perfect form still remains.
Can Willful and Wanton
Acts Be Waived?
There is some question as to whether
participants will be allowed to waive
claims in a release form that are based
upon willful and wanton conduct, or intentional acts. Although there are apparently no specific cases on point in Illinois,
it is generally well settled that statutory
liability, imposed on the basis of a standard of conduct, cannot be contracted
away. Other states have specifically so
held regarding claims for willful, wanton,
reckless, or gross negligence. See, e.g.,
Boucher v. Riner, 68 Md.App. 539, 514
A.2d 485 (1986). Where an injury results
from a violation of a statutory duty which
establishes a certain standard of conduct
for the protection and benefit of the
members of a class, an immunity contract or clause freeing a defendant from
liability for a failure to meet that standard of conduct is unenforceable as contrary to public policy. See, 57 Am.Jur.2d,
Negligence, §24 (1971).
Plaintiffs will argue that the public
policy of the State of Illinois on this matter has been created by and stated in the
legislative enactments of the Tort Immunity Act and Tort Reform Act. Those
legislative enactments create, or at least
allow, recovery against local governments
for some willful and wanton conduct,
and many decided cases in Illinois have
discussed the public policy considerations
in limiting liability waivers. See, Diedrich
v. Wright, 550 F.Supp. 805 (N.D. Ill.
1982); Schlessman v. Hinson, 80
Ill.App.3d 1139, 400 N.E.2d 1039, 36
Ill. Dec. 459 (1980); Sipari v. Villa Olivia
Country Club, 63 Ill.App.3d 985, 380
N.E.2d 819, 20 Ill. Dec. 610 (1978); Berwind Corp. v. Litton Industries, Inc., 532
F.2d 1 (7th Cir. 1976); Rutter v. Arlington Park Jockey Club, 510 F.2d 1065 (7th
Cir. 1975). It will not be known for sure
whether willful and wanton torts can be
waived until a court rules on this issue.
A broad waiver releasing all claims may
be upheld for all but torts which are actually intentional, because a court may
reason that the governmental program
would not have been offered without the
full release and may uphold an expanded
release. The final judicial decision may
be that the statute grants automatic immunity for negligent acts, but willful and
wanton misconduct can only be excused
by a specific release and waiver document. In any case, the execution of a
properly drafted release will both warn
of hazards and effectually release most
claims.
Will Group Waivers Work?
If the liability waivers are incorporated
directly into the program enrollment and
permit application forms, separate documents and separate signatures may not
be necessary if each participant individually signs the group document. Although
individually signed forms will show a
clearer knowledge and intent by the signer, group forms are easier to administer
and store. There will probably be very
few people who will refuse to sign a waiver when it is presented in a group format,
such as in a registration form for an entire team. If there are people who flatly
refuse to sign, then the governmental
bodies and governmental pools face the
policy decision of whether or not to allow
them to participate in the program.
There is no specific legal precedent in
Illinois stating that a citizen has an absolute right to participate in public recreational programs without signing waivers. One might compare this with the
situation where a school attempted to get
waivers from children or parents before
allowing participation in mandatory gym
classes. Such an attempt would almost
certainly be invalid. On the other hand,
we think a strong argument can be made
that no one has a right to participate in
a voluntary governmental program, especially a recreational program, while insisting that he or she does not wish to
follow the reasonable prerequisites set
down by the sponsoring agency. If, as in
the Radloff case, the courts will uphold
the use of a waiver as a prerequisite to
applying for a job as a policeman, they
should uphold a governmental body
which seeks to protect itself from liability in offering recreational programs.
Can Children Waive Rights?
Release and waiver forms signed by
minors are simply of no validity. Forms
signed by parents on their own behalf
should, however, work to free the public
body from any separate lawsuits filed by
the parents seeking damages for themselves as a result of an injury to or death
of a child. Each self-insured governmental entity and pool must decide whether
it is worth achieving a psychological value
by continuing the practice of requiring
children to release their own rights or
parents to release their children's rights.
There is a common assumption that some
parents will not sue for fairly minor injuries because they think they may be
blocked by the execution of release forms.
Release forms will not, however, prevent
parents, on the advice of their lawyers,
from suing when their children are seriously injured.
Who Should the Waiver Forms Cover?
The release and waiver forms should
be broad enough to cover all entities involved in the program, including other
public bodies and all independent contractors. This is very significant because,
unless all potential defendants are covered, the governmental entity could free
itself from liability only to be required to
provide contribution to another defendant sued by the injured participant. Furthermore, the Tort Reform Act specifically excludes independent concessionaires and private entities or persons from
the protection afforded for hazardous
recreational activities in Section 3-109
(Ill.Rev.Stat., ch. 85). This is important
in situations such as the Poskozim case.
If the plaintiff had released only the local
entity, and not the private skydiving company, he could have sued the private
company, which could in turn sue the
local entity for contribution of a portion
of the damages. Governmental immunity
may or may not apply for that type of
third-party claim for contribution, although there are strong arguments that
it should.
Conclusion
The Tort Reform Act provides additional, but not all inclusive, immunities
for governmental bodies, particularly involving hazardous recreational activities.
Where hazardous recreational activities
are involved, a special effort should be
made to acquaint the participant and
spectator with the general hazards involved and especially the hazards which are
not apparent. In order to bolster those
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previous and recently created statutory
defenses, all public bodies and intergovernmental entities, on the strength of the
Radloff, Poskozim and Gloria Marshall
cases, should require participants in their
programs to sign liability waiver forms.
These forms should be used unless and
until it can be demonstrated that the
total administrative costs of using those
forms is higher than the benefits likely to
be received. The forms should be kept
for a minimum of two years to protect
against potential contribution claims,
even though the statute of limitations
for claims directly against local governments is now only one year. A period of
three, four or five years would be even
better, particularly for claims or minors,
who can sue on their own after reaching
age 18.
Even if only one lawsuit is not filed, or
one lawsuit is dismissed on the basis of
the waiver forms, that savings alone will
likely equal the administrative costs of the
program for quite a few years. Waiver
forms are a valuable tool in defending
against the rising tide of often frivolous
lawsuits, and the need for such forms
with a further statement of the hazards
involved is increased rather than decreased by the passage of the Tort Reform Act.
Suggested Advisement for Program Brochures/Registration Forms
——— Participants Must Sign Waivers With Program Registrations ———
The national liability insurance crisis of the last few years
has been particularly severe for local governmental units. As
a result, many municipalities, school districts, and park districts have formed self-insurance pools in order to keep their insurance costs within reason.
In _____ [year], the _______________ [local
public entity] became a member of ______ [acronym], a
self-insured pool with many members. As a loss prevention
measure, that group has asked its members to require program
participants to execute a release form. The Waiver, Release
and Hold Harmless Agreement is part of the registration
form(s) on page(s) _______ of this booklet. Please read the
form carefully, sign it, and submit it when you register for any
particular program. At the time of registration, or at the first
program session, you may be presented with a sheet describing some of the particular risks involved in the particular
activity for which you have registered. If so, that additional
material will become a part of the Waiver, Release and Hold
Harmless Agreement.
We want the registrants in our programs to be aware in advance that, when they participate in certain activities, there
is a natural element of risk of injury which each participant
must assume. We do not carry medical or accident insurance
for program participants. The costs of that type of insurance
would make program fees prohibitive. Please review your own
personal health insurance plan to be certain that you and your
family have the proper coverage.
The use of this form is one of our answers to the national
liability insurance crisis, allowing us to continue to offer quality
programs to the public at a reasonable cost. If you have any
questions, please call _____________________ [phone
number]. Thank you for your cooperation and support.
[COMMENT: The basic content and format of the above advisement was adopted from one used by the Highland Park Park
District. Each unit should adjust the language to fit the local
circumstances, including references to insurance coverage from
a regular carrier, if applicable. Any participant who does not
use a registration form from a booklet or brochure could be
given the above advisement with, or better yet, as a cover sheet
attached to, the separate registration waiver form that is
actually used.]
Additional Warnings for Aerobics Activities
Aerobic exercise is an activity in which, despite careful and
proper preparation, instruction, medical advice, conditioning,
and equipment, there is still a substantial risk of injury. Dependent upon a person's physical condition, age and skill level,
aerobics can involve a substantial risk of the following types
of injuries. This list is by no means complete, but includes some
of the most common ones:
- Heart attack, stroke and circulatory problems.
- Bone and joint injuries.
- Back injury.
- Shin splints.
- Muscle strain and other muscle injuries.
- Foot problems.
- ____________________________
I have read and fully understand the above risk warnings of
the program. I understand that the _______________
[governmental unit] does not and cannot provide insurance or
protection against injuries sustained by program participants,
and I fully accept the risk of injury. I also understand and agree
that this document is valid in and of itself as a waiver and
release form and adds to or confirms any promises made in
a Waiver, Release and Hold Harmless Agreement included in
the registration for this program.
Participant
DATE
[COMMENT: This type of a document will aid in the defense
of claim under the new Tort Reform Act provisions, as well
as provide further specifics for defense on the basis of the
Waiver forms. It can easily be adapted to the group signature
list format for entire teams or classes, to ease the record-keeping
burden, but you should obtain signatures to show that the warnings were, in fact, given. You may want to revise or add to the contents of the list, depending upon your own experience
and knowledge of the risks associated with particular activities.
You should also develop similar documents for other high-risk
activities, particularly those not included in Section 3-109 of
the new statute. Some high-risk activities not included in the
statutory list are: ice skating, bicycle riding (as compared to
"racing" or "jumping"), swimming and diving lessons, running
and all other track and field events or lessons. Keep in mind
that this form of warning can be presented on signs as well as
on paper.
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Legal (Continued from page 24)
Suggested Advisement for Program Brochures/Registration Forms
—————— Suggested Release and Waiver Form ——————
Name of Participant
Names of Sponsoring Entities
[Insert names of all
Governmental Units involved and all Independent
Contractors, if possible]
Waiver, Release of All Claims and Hold
Harmless Agreement For _____________________ [Governmental Unit]
__________________________________________ Name of Program
READ CAREFULLY
Please read this form carefully and be aware that, in
signing up and participating in the above program, you
will be waiving and releasing all claims for injuries, arising out of this program, that you or the above participant
might sustain. The terms "I," "me," and "my" also refer
to parents or guardians as well as the participants in the
program. In registering for the program, you are agreeing as follows:
As a participant in the program, I recognize and acknowledge that there are certain risks of physical injury, and I agree
to assume the full risk of any injuries, including death, damages
or loss which I may sustain as a result of participating, in any
manner, in any and all activities connected with or associated
with such program. I further recognize and acknowledge that
all athletic activities involving strenuous exertion or potential
body contact are hazardous recreational activities and involve
substantial risks of injury.
I agree to waive and relinquish any and all claims that I
may have as a result of participating in the program against
the ________________ [governmental unit], any and
all other participating or cooperating governmental units, any
and all independent contractors, officers, agents, servants and
employees of the governmental bodies and independent contractors, and any and all other persons and entities, of whatever nature, that might be directly or indirectly liable for any
injuries that I might sustain while participating in the program
(The parties described in the preceding sentence are referred
to as "released parties" in the remainder of the Agreement.
I do hereby fully release and discharge the _________________ [governmental unit] and the other released
parties from any and all claims for injuries, including death,
damage or loss which I may have or which may accrue to me
on account of my participation in the program.
I further agree to indemnify, hold harmless and defend the
___________________[governmental unit], and any
and all other released parties, from any and all claims resulting
from injuries, including death, damages and losses sustained
by anyone, and arising out of, connected with, or in any way
associated with my conduct and the activities of the program.
I further understand and agree that the terms such as
"participation," "program," and "activities," referred to in this
Agreement, include all exercises and physical movements of
any nature while I am participating in the program, and
further include the provision of or failure to provide proper
instructions or supervision, the use and adjustment of any and
all machinery, equipment, and apparatus, and anything
related to my use of the services, facilities, or premises involved
in the program.
I understand the nature of the program for which I am
registering, and have read and fully understand this Waiver,
Release and Hold Harmless Agreement. I further understand
that any advisements or warnings of the particular risks of
this program that I subsequently receive will be incorporated
by reference into and become a part of this Agreement.
[Signature of Participant] _____________________ Date _________
[Both Parents or One Custodial Parent, Date
or Guardian Must Sign (if participant
is under age 18)]
_____________________ Date ________
_____________________ Date ________
ABOUT THE AUTHORS: Stewart H. Diamond and Henry E. Mueller currently practice law
through the offices of Ancel, Glink, Diamond, Murphy and Cope, P.C. in Chicago.
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