Best Practices for Drafting a Release of Hazardous Activities

Businesses that conduct hazardous activities (skydiving, heli-skiing, etc.) face a perennial question: How to protect the business from lawsuits from customers in light of the fact that the activity has inherent dangers.

There is no contract or form that can guarantee that a business will avoid liability. At the end of the day, if an accident happens and a customer sues the business, the release will be presented to a judge (or in some states, a jury), who will make the threshold determination as to whether the customer really and truly intended to release the business for anything that went wrong. The judge will ask questions of the customer. Did the customer really understand what he or she was signing?   Were they in their right mind when they signed the release? Were they pressured to do it? Did someone from the business help explain the release? One can see that a skilled plaintiff’s lawyer can poke a hole in a release, especially where the release is not well drafted.

That said, here are the best practices for a release. By following these steps, a business is more likely to have a release that survives a lawsuit.

(1).   Have the release be separate from the contract for services. When a business is conducting a hazardous operation, there are two transactions occurring. First, the business is agreeing to perform a service in exchange for the customer paying x-price. Second, the customer is agreeing to release the business if something goes wrong, in exchange for the business offering a better price. Break the two concepts into two separate documents.

(2). Write the release in plain English. Consider the following release:

 “…the aforementioned Customer hereby releases, discharges and acquits forever and ever said Business from any and all claims, liabilities, causes of action now accruing…”

No one speaks King’s English anymore. It is not as powerful or clear as normal, everyday language. Write it in plain English:

“By signing this Release, you agree to never sue the heli-skiing operator. That goes for you, the Customer.   It also bars your spouse, domestic partner, or children from suing us if you die in a heli-skiing accident.”

It’s more clear. Just say what you mean and write the document as if you were explaining it to a customer.

(3). Address Liability. The release needs to waive liability. If the business’s pilot does something wrong during the operation, there is a good chance that the business made a mistake. Suppose the helicopter hits the mountain. The NTSB crash investigation determines that it was CFIT due to glare, and that the pilot didn’t have the nose of the helicopter pointed the right direction. In that case, the pilot made an error, and the business was negligent. Negligent businesses are usually liable. Thus, the address should address liability. Sample language:

You, the Customer, are waiving liability. What that means is that, if the pilot makes a mistake and your leg gets chopped off because of that mistake, you will not sue the Business. By signing this release, you agree that you will not sue the Business, even if the Business screwed it up.

(4). Address Damages. Sometimes a court will not enforce the liability waiver. For example, if the pilot was extremely reckless, the release will not work to waive liability. In that case, the fall-back is to have a waiver of damages, whereby the customer agrees that its damages are limited to x-dollars. The basic idea.

The Business has purchased an insurance policy that will provide you, the Customer, with up to $_________ in the event that you are injured. By signing this Release, you agree that those proceeds are the only sums you will receive in the event of an accident. You agree to waive any and all other damages, and that the insurance proceeds are the entirety of what you will receive.

(5). Indemnity. Indemnity clauses are tricky. The idea is that, if a third person sues the business, the Customer will foot the bill for the defense of the suit. Good luck with that – the customer might not have the means to do that. There are two things that an indemnity clause should say (and this is the one instance in which King’s English is probably required). First, the agreement should have the words “defend, indemnify, and hold harmless.” As an example, “Customer will defend, indemnify and hold harmless business from and against any and all claims, suits, causes of action….”   Second, it should be broad and relate to any activity: “…arising out of the relationship and activities engaged in between Customer and Business…” We don’t want the indemnity to be related only to Business’s negligence. It needs to be related to all activities.

(6). Say in the release those things you would tell your kid if he/she were to do this activity. The key here is the warning. You need to warn the customer and give that person a chance to get out of this deal now. Sample language.

Heli-skiiing is seen as being an “ultra hazardous activity.” We will do our best to make it as safe as possible, but there is no way to guarantee that a bad outcome won’t happen. You might be permanently disabled. You might die.

We have to have you sign this Release if you are going to engage in heli-skiing. There is no way that we can operate as a business if our customers don’t release us from liability and damages. That is why we require this release to be signed.

BEFORE YOU SIGN THIS RELEASE, STOP AND THINK ABOUT WHAT YOU ARE ABOUT TO DO!!!   By signing this release, you agree on behalf of yourself and your loved ones that you cannot sue the Business, and that the only money that you might receive are the insurance proceeds. IF AFTER THINKING ABOUT IT YOU DON’T WANT TO DO IT, THEN PLEASE RETURN TO THE FRONT DESK AND RECEIVE YOUR MONEY BACK.

If, as a thinking, consenting adult, you decide that you want to have the experience of heli-skiing, then lets do this operation together. Follow the instructions of our staff for this to be as safe of an operation as possible. Let’s work together to have a great experience for you and us, while knowing full well what the risks are.

*     *     *

Conclusion. There are no magic words to a release. But by adding the above principles, you have a better chance of having an enforceable release that is kept intact by a court of law.

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Get Gen. Dunford to NSC Meetings

“The Chairman of the Joint Chiefs of Staff may . . . subject to the direction of the President, attend and participate in meetings of the National Security Council.” 50 USC § 3021(e).

The President has directed that Gen. Dunford not be a regular attendee. Instead, Steve Bannon will be a regular attendee.

As a regimental commander, Gen. Dunford used to give “fireside chats,” in which he would explain every night over Reg. Tac. II the lay of the land and the concept of operations. He knows his stuff.

Mr. President, please listen to Gen. Dunford. Have him at those meetings.

The speck in our own eye

I am mindful this evening of Jesus’ admonition in Matthew 7:5 that we ought not seek to take the speck out of the eye of another, when we have a plank in our own eye.

Republicans (of which I am — more or less — one) have a serious plank in our own eye.  President Trump and the actions of this administration are that plank.  It makes it difficult to critique any other political party when our own house is in such disorder.

Unmanned Aircraft Proposed Rules: Commercial Operations Permissible, but Limitations will Remain

The FAA’s February 23rd Notice of Proposed Rulemaking (NPRM) regarding Unmanned Aircraft Systems (UAS) would add a new section to Federal Aviation Regulations (FARs) governing general operating rules for aircraft. Presently FAR Parts 91 through 105 set forth the air traffic and general operating rules for flights carried on in United States airspace. The February 23rd (NPRM) would add a new section — FAR Part 107 — governing unmanned aircraft flights.

My read on the proposed FAR Part 107 is that commercial operations would be permissible, so long as the operation does not involve carrying cargo for hire. Thus aerial surveying, photography, and so forth, would be acceptable, so long as they meet the requirements in the new part. External cargo carrying operations, such as what has been mentioned by companies like Amazon, would still be restricted to certificated “air carriers,” which need to meet the standards of the more stringent FAR Part for commercial air carriers, such as FAR Parts 121 (scheduled air carrier service) or 135 (charter air carriers).

Operations will still be limited by the requirement that the operator maintain visual line of sight of the aircraft, and that flights remain within 500 feet of the ground. That will effectively limit scope of the permissible flights. Moreover, flights cannot occur without meeting visual flight rules minima, which are currently three miles of visibility. That may be a bit restrictive — one can imagine a desire to conduct aerial photography over a confined area on a cloudy day, in which one could very safely operate a UAS when there is not the three miles of visibility that would be required when flying a small airplane like a Cessna under visual flight rules. That may be a bit excessive, especially for operators in the Pacific Northwest.

As for the qualifications of the operator, the proposed rule would not require that the operator hold a certificate such as a private pilot’s license. They would, however, require that the pilot have undergone an initial knowledge test. The operator will also need to be 17 years old.

Overall, the proposed Part 107 appears to be a step in the right direction. It gives owners and operators of UAS equipment some level of certainty as to what they can and cannot do. Currently, owners and potential operators must apply for an exemption request — a time-consuming process. The proposed Part 107 will help by setting the initial boundaries for UAS operations while ensuring safety of flight.

A copy of the NPRM as published in the federal register can be found at http://www.gpo.gov/fdsys/pkg/FR-2015-02-23/pdf/2015-03544.pdf

The Supreme Court’s Decision of February 9th: Same-Sex Marriage Goes Forward in Alabama

Yesterday the United States Supreme Court denied the Alabama Attorney General’s application to stay federal district Court Judge Callie Granade’s decision of January 23, 2015, in which Judge Granade ruled “that Alabama’s marriage laws violate the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.”  Searcy v. Strange, No. 14-0208-CG-N, 2015 WL 328728, at *5 (S.D. Ala. Jan. 23, 2015).  Searcy involved a same-sex couple’s attempt to adopt.  Cari Searcy and Kimberly McKeand had legally married in California.  Id., *1.   In 2011, they petitioned a probate court in Alabama for Cari to adopt Kimberly’s 8-year-old biological son.  Id.  The Alabama probate court denied the petition, because Alabama’s Sanctity of Marriage Amendment to the Alabama Constitution and the Alabama Marriage Protection Act define marriage as a “sacred covenant, solemnized between a man and a woman,” and prohibit Alabama from recognizing “as valid any marriage of parties of the same sex that occurred . . .  as a result of the law of any jurisdiction.”  Id.  Because Alabama did not recognize the marriage between Cari and Kimberly, Cari did not qualify as a “spouse” under Alabama’s adoption laws. Cari was thus prohibited from adopting her spouse’s child.  Id., *2.  Judge Granade held that under the equal protection and due process clauses of the United States Constitution, the Alabama Marriage Protection Act and Marriage Amendment were not narrowly tailored to meet the concerns of the State; and that the laws were indeed harmful in a case such as this, where Kimberly’s 8-year-old son was denied the benefit of two parents. Id., *4-5.

Last Tuesday, February 3rd, Alabama Attorney General Luther Strange presented to Justice Clarence Thomas a petition requesting that the United States Supreme Court stay the implementation of Judge’s Granade’s decision.  Justice Thomas referred the petition to the Court.  Seven of the nine Justices voted to deny the petition,.  Strange v. Searcy, No. 14A840, 574 U.S. ____ (2015).

Justices Thomas and Scalia dissented.  They dissented because, while the issue of whether a state’s definition of marriage violates the Fourteenth Amendment will be heard in four consolidated cases later this term.  That question has not been decided at the present time.  Thus they felt that the Court should preserve the status quo.

Justice Thomas wrote, “When courts declare state laws unconstitutional and enjoin state officials from enforcing them, our ordinary practice is to suspend those injunctions from taking effect pending appellate review.”  Strange at *1.  And indeed, the Court had in 2014 issued stays in similar circumstances.  Id., *2.  They also took note of how the Court might rule later this year:  “This acquiescence may well be seen as a signal of the Court’s intended resolution of that question.”  Id., *3.  But even if the high court may well end up ruling as Judge Granade has in Alabama, “This is not the proper way to discharge our Article III responsibilities.” Id.  In other words, Justices Thomas and Scalia felt that the Court should have granted the Alabama AG’s stay until the issue is officially decided.  “I would have shown the people of Alabama the respect they deserve and preserved the status quo while the Court resolves this important constitutional question.” Id.

Personally, I look forward to reading the briefs in the four consolidated cases, to the debate that will be had, and to the Court’s interpretation and answer on a critical question of our time.  I tend to side with the positions taken by individuals such as Judge Granade.  Yet it is an important question that needs to be thoroughly argued.  And it will be very interesting to see if the final decision in the four consolidated matters will be a seven-to-two decision, as occurred yesterday in Strange v. Searcy.