• Key point: “Release forms” signed by competent adults will be recognized by the courts in some states, and will prevent one who signs such a form from suing specified persons or organizations for negligence.
• A Washington court ruled that the family of a college student killed during a scuba diving activity was prevented from suing the college or scuba instructor by a release form signed by the student prior to his death. A college student enrolled in a scuba diving class and signed a “release of liability” form that specified:
I understand and agree that neither [the college nor my instructors] may be held liable in any way for any occurrence in connection with this diving class that may result in injury, death, or other damages to me or my family, heirs, or assigns … and further to save and hold harmless said program and persons from any claim by me, my family, estate, heirs, or assigns, arising out of my enrollment and participation in this course.
It is the intention of [the student] by this instrument to exempt and release [the college and instructors] from all liability whatsoever for personal injury, property damage or wrongful death caused by negligence.
The student also signed an “assumption of risk” form that specified:
In consideration of being allowed to enroll in this course, I hereby personally assume all risks in connection with said course, for any harm, injury or damage that may befall me while I am enrolled as a student of the course, including all risks connected therewith, whether foreseen or unforseen.
During one dive the student panicked when he noticed the air in his tank was low, and died of air embolism resulting from too rapid an ascent. His family sued the college and his instructor. A trial court dismissed the case on the basis of the release and assumption of risk forms that the student had signed, and the parents appealed. A state appeals court agreed with the trial court’s dismissal of the case. The court’s decision contains an excellent discussion of the legal effectiveness of releases and assumption of risk forms that will be instructive to church leaders. The court began its opinion by acknowledging that “a release is a contract in which one party agrees to abandon or relinquish a claim … against another party,” and that release agreements “are strictly construed and must be clear if the release from liability is to be enforced.” The court also stressed that “the general rule is that a pre-injury release of the employer from liability also releases the employee.” As a result, the student’s release of the college had the effect of releasing the instructor (even if the instructor had not been specifically named in the release).
The court agreed with the family that a release will not be enforced if it violates “public policy.” However, the court noted that under Washington law, a release agreement will not violate public policy unless it involves a “public interest.” By this the court referred to activities of such great importance to the public as to amount to a “practical necessity for some members of the public” and to be “suitable for public regulation.” The court observed that “extended discussion is not required to conclude that scuba diving does not involve a public duty.” It also referred to other court decisions that had concluded that mountaineering, motorcross racing, sky diving, and dirtbike racing do not involve a public interest.
The court acknowledged that a release form only releases organizations and individuals from their ordinary negligence, and not from their gross negligence. However, the court added that “evidence of negligence is not evidence of gross negligence; to raise an issue of gross negligence, there must be substantial evidence of serious negligence.” The court concluded that there was no evidence of gross negligence in this case other than the unsupported allegations of the family.
Finally, the court addressed the assumption of risk form signed by the student. The family argued that the assumption of risk form their son signed was unenforceable since he did not specifically assume the risks of negligent instruction and negligent supervision. The court disagreed. It observed that the legal doctrine of assumption of risk “is surrounded by confusion …. Express assumption of risk bars a claim resulting from risks actually assumed by the plaintiff; implied primary assumption of risk bars a claim resulting from specific known and appreciated risks. One who participates in sports impliedly assumes the risks which are inherent in the sport.” The court noted that the student had signed an assumption of risk form in which he assumed “all risks” associated with his scuba diving class. The court continued:
Negligent instruction and supervision are clearly risks associated with being a student in a scuba diving course and are encompassed by the broad language of the contract. That [the student] may not have specifically considered the possibility of instructor negligence when he signed the release does not invalidate his express assumption of all risks associated with his participation in the course …. [K]nowledge of a particular risk is unnecessary when there is an express agreement to assume all risk; by express agreement a plaintiff may undertake to assume all the risks of a particular situation, whether they are known or unknown to him.
This case demonstrates the legal enforceability of releases and assumption of risk forms signed by competent adults in some states. The court did recognize at least two situations in which such releases are not enforceable—when a public interest is involved, and if death or injury is attributable to gross negligence. Note that this case did not deal with release forms signed by parents on behalf of minor children. Boyce v. West, 862 P.2d 592 (Wash. App. Div. 3 1993).
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