Providers of sports and recreational services, such as fitness centers, sports camps, athletic instructors, fishing guides, and boat charter services, should always have their clients sign a written waiver, release of liability, and assumption of risk form. To most providers, this form was likely one of the first documents they put together when starting their venture. However, many people are tempted to copy a release used by a competitor or found online.
One key risk in taking a shortcut on your release is that the “exculpatory clause” is too narrow. The “exculpatory clause” is the portion of the release that limits the liability of the provider for damages resulting from certain activities.
For most providers, it is simple to list the obvious risks associated with the activity, such as the risk of drowning on a chartered fishing trip. ”Excursion” trips, however, is an example of a service that includes many activities beyond the core activity. For example, a rock climbing guide would certainly include the obvious risk of falling off of a cliff face in her waiver. Suppose the guide takes her clients on an extended hiking trip to a remote climbing location and also provides overnight camping accommodations and food. Does her release include the risk that a camper gets food poisoning from the provided meals? What about a fishing guide who injures a client in an auto accident while driving the client to different spots along Minnesota’s Whitewater River? Does the client’s signed waiver of liability for “fishing and related activities” include these injuries?
In certain situations, Minnesota courts recognize the right of a party to contractually protect itself against liability, including liability due to their own negligence, provided that the release does not violate public policy. Even though this right is recognized, however, releases and assumption-of-risk contracts are not typically favored by courts and are strictly construed against the benefited party (in our examples, the climbing and fishing guides).
One factor a court analyzes is whether the exculpatory clause is ambiguous, meaning that the clause is susceptible to more than one reasonable interpretation. Courts will not enforce a provision that is ambiguous. Ambiguity is determined on a case-by-case basis.
Back to our examples – Is “fishing activities” sufficiently broad to include driving the client between fishing spots? This would be a question of fact determined in court, and even if the court finds for the guide, it will be at the cost of significant time, stress, and legal fees.
The takeaway for sports and recreation providers is to regularly review the scope of activities contained in their waivers and make sure all related risks and activities are included, even if the risks are remote and the ancillary activities are only a small part of the services. For example, a fishing trip may include dangers associated with lightning and severe weather, traversing over rough terrain, and wild animals.
Sports and recreation providers would be wise to have an attorney experienced in this area review their waiver, release, and assumption-of-risk forms.
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