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FEATURE LEGAL ARTICLE

Pre-Activity Waivers and
Releases of Liability

覧覧覧覧覧*覧覧覧覧覧覧

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-

Illinois Parks and Recreation 22 March/April 1989

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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Illinois Parks and Recreation 23 March/April 1989

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

覧 Participants Must Sign Waivers With Program Registrations 覧

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:

  1. Heart attack, stroke and circulatory problems.
  2. Bone and joint injuries.
  3. Back injury.
  4. Shin splints.
  5. Muscle strain and other muscle injuries.
  6. Foot problems.
  7. ____________________________

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.

(Continued on page 27)

Illinois Parks and Recreation 24 March/April 1989

Legal (Continued from page 24)

Suggested Advisement for Program Brochures/Registration Forms

覧覧覧 Suggested Release and Waiver Form 覧覧覧

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.

Illinois Parks and Recreation 27 March/April 1989

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