A problem that is developing in many states is the restriction on the application of waivers signed by minors or signed by the parents of minors (parental waivers). Until recent years, the general rule was that waivers signed by minors or signed by parents of minor children were unenforceable. In recent years, courts in several states have begun to enforce parental waivers. In addition, two states (Alaska and Colorado) have passed laws that allow for the enforcement of such agreements. A discharge agreement is generally a provision contained in a contract between a service provider and a participant that exempts the service provider from any liability resulting from loss or damage to the participant. The terms „waiver“ and „indemnification“ are generally used interchangeably. An example of a relief clause is the receipt of a dry cleaning, which contains a disclaimer that supposedly exempts dry cleaning from any liability for damage to clothing during the dry cleaning process. Disclaimers may appear as warning signs on playgrounds, sports arenas, construction sites or other areas at risk of physical injury („entering at your own risk“ or „using at your own risk“). It is common to see signs such as the following in offices: „Park at your own risk!“; “ Swim at your own risk! » ; „Enter at your own risk!“; or „The occupant is not responsible for damaged or stolen items in this property, regardless of how they were caused!“ They may appear as part of packaging or advertising for consumer goods. They can also be found as a „license“ that allows a person to be in commercial premises or use certain properties subject to restrictions.
Sometimes they take the form of „click-wrap“ or „shrink-wrap“ agreements – the fine print you see, among other things, when you click on the terms and conditions when accessing an online service or as part of installing software. A typical form for waiver of liability may be as follows: Other states, such as Ohio, have examined the complexity of the document`s wording to determine whether a „normally prudent and knowledgeable person would have understood the provision as an exemption from liability for negligence.“ Hall v. Woodland Lake Leisure Resort Club, 1998 WL 729197 (Ohio App. 1998). California courts have established six criteria to identify the type of agreement in which a disclaimer is invalid as contrary to public policy: INDEMNIFICATION AGREEMENT. „Indemnification“ means to reimburse another party for any loss or damage suffered as a result of the acts or omissions of a third party or its own acts or omissions. It is a promise to compensate another for such a loss and to give a guarantee against such a loss. It is a promise to do something in the future if injury or damage arises from an activity. A compensation agreement is often accompanied by a promise to „indemnify“ another party: even if the waiver is deemed valid, it usually only applies to simple negligence. A majority of States consider that such agreements are generally void because public policy prevents the application of a release that would prevent serious misconduct or gross negligence. City of Santa Barbara v.
Superior Court, 41 Cal.4th 747 (Cal. 2007). Some states, such as Connecticut, do not recognize the degree of negligence and therefore do not recognize gross negligence as a separate basis for liability. However, these courts have limited the application of releases to situations where considerations of public order and good conscience are not linked. Hanks v. Powder Ridge Restaurant Corp., et al., 885 A.2d 734 (Conn. 2005). In addition, some state laws affect the feasibility of a disclaimer.
In New York, any risk-taking/waiver in connection with a swimming pool, gym, amusement park or other similar facility will be considered null and void by law and contrary to public order – especially if the applicant pays a fee for the use of the facility….