At least once in your life you’ve probably seen a page filled with tiny print pushed under your nose right before you’re about to do something fun.
“The lawyers make us do this” an employee may tell you. Who reads those things? Not me.
Renting skis? Sign this release. Joining a gym? Sign this release. Hot air balloon? Sign this release.
If you are unlucky enough to get injured, you may find out that the language buried in the back page made you agreed not to sue. Can they do that?? The short answer is yes. And no. Let me explain.
A contract provision agreeing not to sue is known as an ‘express release.’ Parties may contract to release others for risk of potential injury. However, if you are injured after signing a release, you may not be completely out of luck. An express release can be attacked both on its form and its scope.
Form of Release
An express release is not enforceable unless it is easily readable. The Civil Code regulates the required minimum typeface sizes for certain contract provisions. Generally 8- to 10-point type, often in boldface, or capital letters is required.
Furthermore, the important language should be placed in a position that compels notice and must be distinguished from other sections of the document. When a release provision is printed in the same typeface as the remainder of the document and not likely to attract attention, the release is probably not enforceable.
Scope of Release
An express release may also be attacked for simply not covering the injury sustained. A release must be read closely to determine if it covers the manner of injury, specifically whether the injury sustained as the normal result of participation, or if the injury was caused by someone else’s negligence.
An express release may be used to release from future negligence or misconduct, however, any contract of release from negligence must be clear, explicit, and free of ambiguity or obscurity. The language must tell the prospective releasor that he or she is releasing the other from liability, specifically including negligence. There must be no doubt that releasing for negligence is the intent of both parties.
If the word negligence does not appear, the release likely will not satisfy this requirement. Similarly, where the release language used does not include the world release, it does not meet the standard of clear, explicit and comprehensible to an ordinary person.
If you suffer a personal injury after signing a release don’t assume that you are out of luck. A close look at the contract language and consultation a qualified personal injury attorney in your area can make all the difference.