The Truth About Waivers and Releases

In today's litigious society, park and recreation agencies need all the ammunition they can get

An attorney asserts on behalf of his injured 33-year-old client: "Hey, you call it 'softball?' My client lost his sight in one eye after being struck by your softball while sliding into second base. My theory of liability is that the park district negligently misrepresented the sport as so softball when, in fact, the ball is actually hard"

The mother of a child who was slightly injured while sparring in a karate class comments: "I am going to sue all of you because my son was supposed to learn how to hurt other kids, not get hurt himself"

A family member of a 98-year-old male fitness center patron who suffered a fatal heart attack while using an exercise bike says: "I don't care that my grandfather had six previous heart attacks. I'm going to sue your ass because we already had his 100th birthday party planned."

The author personally heard these true-life comments. Mindful of statements like these, why use waivers? The answer is "Why not?" That is, why not seize the opportunity to communicate the inherent risks associated with any activity? Why not require participants and parents of minor participants to assume the risks associated with voluntary participation in recreational activities and programs? And, why not provide your agency with an alternative avenue of liability protection in today's litigious society?

Contrary to popular belief, it remains well settled under Illinois law, that a party may contract to avoid liability for his own negligence and, absent fraud or willful and wanton negligence, the contract will be valid and enforceable unless: 1) there is a substantial disparity in the bargaining position of the two parties, 2) to uphold the waiver and release clause would be in violation of public policy; or 3) there is something in the social relationship between the two parties that would mitigate against upholding the clause.

The rationale for upholding the enforceability of waivers is that courts should not interfere with the right of two parties to contract with one another if they freely and knowingly enter into the agreement. By the same token, to be valid and enforceable, a waiver and release agreement should contain clear, explicit and unequivocal language referencing the types of activities, circumstances or situations that it encompasses and for which the participant agrees to relieve the provider from a duty of care. The precise occurrence which may result in injury need not be contemplated by the parties at the time the contract is entered into. It should only appear that an injury may fell within the scope of possible dangers ordinarily accompanying the activity and, thus, be treasonably contemplated by the participant. In this way, the participant will be put on notice of the range of dangers for which he assumes the risk of injury, enabling him to minimize the risks by exercising a greater degree of caution.

In the recreational context, Illinois courts have consistently upheld the validity and enforceability of waivers executed by adult participants. However, in a case of first impression, the appellate court in Meyer v. Naperville Manner, Inc., 634 N.E.2d 411 ( 2nd Dist. 1994) held that in the absence of statutory or judicial authorization, a parent cannot waive, compromise, or release a minor child's cause of action merely because of the parental relationship, although a parent may waive the parent's own cause of action arising out of his child's participation. To date, the Illinois Supreme Court has not addressed this issue. Yet, subsequent to the Meyer