Releasing Liability: What You Should Know Before Your Business Uses a Release of Liability

Some activities are inherently risky. Visitors of certain types of businesses, such as shooting ranges, equestrian centers, and sky diving know there is a chance they could get injured when they engage in the activities those businesses offer. To protect themselves against potentially costly lawsuits, businesses can use a liability waiver to shift the risk from themselves to their customers.

Liability waivers are a type of contractual provision in which one party agrees not to hold the other party legally responsible for a set of acknowledged risks. Businesses may ask customers to sign a liability waiver saying that they will not sue for damages if they are injured on the business owner’s premises.
Courts have generally found liability waivers to be enforceable, but they are not a silver bullet. If you ask your customers to sign away their right to sue, you must draft a liability waiver that will stand up to scrutiny if tested.

When Is a Liability Waiver Appropriate?

Liability waivers are most commonly used by businesses that offer dangerous activities. “Dangerous” does not have to mean an extreme activity like skydiving, CrossFit, or martial arts, however.

● Most people would not consider getting a massage to be dangerous, but a massage therapist might ask patients to sign a liability waiver in case they aggravate a prior injury when providing treatment.
● Liability waivers may be used if just one part of an activity—or one part of a property—presents risks. A sightseeing tour offered by a tourism company might not be considered very dangerous, but traveling by car or bus to the tour destination carries a risk of injury, so the tourism company might ask guests to sign a liability waiver. Similarly, a homeowners’ association might have a liability waiver pertaining to their recreational facilities, such as pools and workout centers.
● Businesses may require contractors to sign a waiver prior to working on their property.
● Liability waivers can be used in unusual or one-off circumstances that present a risk of injury or illness; for example, during the COVID-19 pandemic, businesses introduced liability waivers in an attempt to preclude lawsuits from people who became ill from contracting the virus at the business’s site.

There is no definitive list of circumstances in which businesses should or should not use a liability waiver.

For practical reasons, not all businesses ask customers to sign liability waivers. Grocery store patrons, for example, could slip and fall on a wet spot and sue the store for their injuries, but they are not asked to sign waivers before shopping. The risk of a slip-and-fall accident is low, and it would require a lot of time and resources to get every shopper to sign a release. It is more practical for grocery stores to clean up spills and use “wet floor” signs when appropriate to mitigate their liability.

On the other hand, if the grocery store has a play area for children to use while their parents shop, the store might ask parents to sign a waiver releasing the store from liability for injuries suffered while using the play area.

Liability waivers are typically not used in an employment context to protect the business against claims arising from work-related injuries. This is because employees cannot sue their employers for injuries, except in very rare cases. Instead, they are compensated by the business’s workers’ compensation insurance. An employer could ask an employee to sign a release that is not related to injury claims, however, such as a release barring legal claims over separation or termination of employment.

Are Liability Waivers Legally Enforceable?

The enforceability of liability waivers is generally a state law matter, and states vary widely in their stance towards these provisions. Some states, including Louisiana and Virginia, consider waivers of liability for physical injury to be unenforceable. Other states have a freedom-of-contract stance and allow liability waivers if they meet a few basic requirements.

To be legally enforceable in states where they may be used, a waiver should meet the following criteria:
● The waiver must be clear and unambiguous. This means that the waiver must clearly specify the types of activities and legal claims it applies to. The waiver should not be overly broad to avoid confusion about its terms. It should also avoid legalese in favor of terms easily understandable by the average person. The customer should be able to understand what they are signing and that they are waiving their rights.
● The waiver should be conspicuous. This means that the liability waiver should be a separate document and should not be buried within a registration form or document that also addresses other matters.
● The waiver should not include intentional, reckless, or grossly negligent conduct. Waivers are designed to provide a liability shield against ordinary negligence (i.e., unintentional conduct or oversight). They are not a get-out-of-jail-free card for companies to engage in wanton irresponsibility. So, while a waiver might protect a company offering hazardous activities against an accidental injury, if the company offers those activities without providing any safety equipment or procedures, a waiver likely would not protect them against claims arising from customers’ injuries that could have been avoided by taking those reasonable precautions.
● The waiver cannot violate state laws or public policy. Not only must liability waivers comply with the law in the state where they are drafted, they also must not violate public policy. For example, a waiver may be determined to be against public policy if one party has substantially less bargaining power, so that the contract puts them at the mercy of the other party’s negligence.
● The waiver should comply with basic contract law principles. Each state has developed a body of case law applicable to liability waivers. In addition to these state-specific rules, basic contract law principles apply to waivers. The business seeking to enforce the waiver must obtain a signature from a customer who has the capacity to enter into the contract and provide sufficient consideration (i.e., something of value). Note that many states will not enforce a liability release signed by a parent on behalf of their minor children, who lack contractual capacity.

In summary, a liability waiver should be as detailed and as clear as possible. It should describe the activity the customer will engage in and its location, list the possible risks and injuries that could arise from that activity, and release the business from negligence to the full extent of the law, without creating a blanket shield against grossly negligent conduct. The names and addresses of the parties must be included, and the waiver must be presented to each individual customer for their signature, as a release that purports to waive liability on behalf of a group is not likely to be enforceable. Above all, have an attorney review the waiver of liability to ensure it complies with applicable state laws and will pass muster if tested in court.

Are You Doing Everything Possible to Protect Your Business?

The decision to have customers sign a liability waiver is usually industry-dependent; but new risks are constantly emerging, and companies must always be prepared to update their mitigation strategy.

Although a liability waiver is not a guarantee against all liability, when well-written, it can be an important part of a company’s risk management strategy. One-size-fits-all online documents that are not tailored to your unique business activities and jurisdiction’s laws could fail a court challenge. For help creating a customized liability waiver designed specifically for your business, contact our office to schedule an appointment.

Why Gun Owners Need an Idaho Gun Trust

A gun trust is a special type of trust that is designed to hold all of your firearms and firearms-related accessories. Gun trusts make it much easier for your loved ones to handle your firearms should you become incapacitated or die, they boost your ability to share and transfer NFA firearms, and they help ensure all state and federal laws are followed.

Gun trusts have become the planning tool for gun owners whose collections include NFA firearms. One of the primary reasons is the ability to share possession of the NFA firearms with other trustees. Unlike other firearms, unless restricted by your state’s laws, NFA firearms can only be possessed by the person to whom the firearm is registered. There is no exception for family members or other people with whom you live. If you leave your NFA firearm at home where it is accessible to other people, you and the other people in your home are violating federal law.

Most NFA gun owners are aware of this gun-trust benefit. But many gun owners are not aware that gun trusts are important tools for all gun owners, whether or not a collection includes NFA firearms.

Even if your collection does not include NFA firearms, you and your family will still benefit from a gun trust.  Gun trusts are important for all gun owners, because they prepare you and your loved ones for your death and incapacity by responsibly addressing your firearms and keeping your affairs out of the court system. Planning for the possibility that you will be incapacitated (whether from age or accident), even if temporarily, is important for everyone. It is even more important for gun owners.  Remember:  if you don’t plan, the government has a plan for you. The government’s plan is a public, expensive, judge-controlled system that will take away your right to own a firearm.

All gun owners should try to avoid the court system if they are incapacitated or die by creating general estate planning documents as well as a gun trust.  To learn more about proper estate planning for gun owners, watch a short video Estate Planning for Gun Owners.  To learn why gun trusts are still important planning tools, even after Rule 41F went into effect, watch Why You Still Need a Gun Trust Even After Rule 41F.

What does a properly drafted gun trust look like?

When properly written, gun trusts are powerful asset protection and estate planning tools. A well-drafted gun trust will achieve the following for the gun owner who creates the trust:

  1. Ensure that friends and family can lawfully possess and transfer trust-owned firearms during the gun owner’s lifetime;
  2. Create a private plan that completely avoids the court system for all firearms if the gun owner becomes incapacitated or dies;
  3. Assists gun owners in sharing NFA firearms with other law-abiding gun owners;
  4. Helps the successors and heirs understand the gun owner’s desires related to all the trust-owned firearms;
  5. Helps the ones you care about to comply with firearms laws when they possess or transfer the firearms;
  6. Assists the gun owner to own firearms in more than one state; and
  7. Ensures that neither gun owner nor any loved ones commits an accidental felony. All of these gun-trust benefits are not affected by Rule 41F.

We would love to meet with you and answer your questions.

Call us at 208-345-6308 to schedule your free consultation, where you can ask all your questions to an Idaho firearms attorney or Oregon firearms attorney about Idaho trusts, Oregon trusts, Idaho gun trusts, Oregon gun trusts, and Idaho gun laws and Oregon gun laws and make an informed decision before you start a project.  We serve clients in Boise, Eagle, Meridian, Nampa, Caldwell, Star, Emmett, the Treasure Valley, the Magic Valley, Twin Falls, Mountain Home in Idaho, including Ada County, Canyon County, Gem County, Twin Falls County and elsewhere in Idaho.  We also service clients in Portland, Lake Oswego, Gold Beach, Brookings, Port Orford, Medford, Oregon, and all over the Pacific Northwest!

How Firearms Create Special Issues in Idaho Probate

When a gun owner dies and has not prepared a gun trust to direct how the firearms should be handled, it is imperative that the person handling the estate (Idaho probate or Oregon probate) understands the many rules that apply to the transfer and possession of firearms.  Breaking these rules, even accidentally, is often a felony.  A well-drafted Idaho gun trust will assist the trustee with the following issues by giving much more direction that a personal representative (executor or executrix) will receive in a probate proceeding.  Keep in mind that expert legal advice is essential. 

If you are involved in a gun owner’s Idaho probate or Oregon probate, here are a few issues you will need to address:

  1. Is there a master list of firearms?  Some Idaho gun owners or Oregon gun owners leave a list on a computer program, such as Gun Count.  You should try to find a list of firearms, to make sure that all of them are gathered, properly stored, and legal.  As the personal representative, you are responsible for locating and properly storing the firearms until they are legally transferred to the heirs or sold.
  2. Where are the firearms?  Are they stored in a place that is secure from theft, minors, and those who cannot legally possess firearms?  Again, as a personal representative for an estate in Idaho or Oregon, you are in charge and responsible for keeping the firearms secured.
  3. What kinds of firearms are there?  Keep in mind that a simple-looking metal part called a receiver is a firearm under the law, subject to rules about possession and transfer.  Small metal parts may constitute a “machine gun.”  If any of the firearms are subject to a federal law known as the National Firearms Act, strict rules about who can possess and how these firearms are transferred must be obeyed to avoid committing a felony.  If you don’t know what these items look like, get help!
  4. Always use an FFL for all transfers to the heirs or beneficiaries of an estate.  Using an FFL will ensure that you are doing things correctly and that the person receiving the firearm can legally have it.  The cost of allowing an FFL to conduct the transfer and run a background check is well-worth it.
  5. Check the laws of the state you are in as well as the laws of the state where the firearms are going.  Each state has different laws about what types of firearms are legal, whether a firearm must be registered, whether a background check must be conducted, and at what age a person may receive a firearm.  These rules must be strictly followed to avoid breaking the law.
  6. Make sure you follow all laws on how to legally transfer a firearm.   Transfers across state lines are particularly tricky, and the proper procedure will depend on the laws of at least two states:  1) the state laws where the firearms are located and 2) the state laws that exist in the state where the firearms are going. Use an FFL to ship any handgun to another FFL, and always ship a long gun to an FFL.
  7. Use a professional to value the firearms.  Don’t guess.  If you are selling the firearms, you are responsible for getting fair market value or above.
  8. Seek legal advice from a competent estate and firearms law attorney.  Not all estate attorneys are firearms law attorneys, and vice versa.   The Idaho firearms and estate attorneys and Oregon firearms and estate attorneys at Alex Kincaid Law provide you with experts in both areas of the law, to ensure an efficient, smooth, and competent transition of firearms in Idaho probates and in Oregon probates.

We would love to meet with you and answer your questions.   Call us at 208-345-6308 to schedule your free consultation, where you can ask all your questions to an Idaho probate attorney or Oregon probate attorney about Idaho probate, Oregon probate, Idaho gun trusts, Oregon gun trusts, and Idaho gun laws and Oregon gun laws and make an informed decision before you start a project.  We serve clients in Boise, Eagle, Meridian, Nampa, Caldwell, Star, Emmett, the Treasure Valley, the Magic Valley, Twin Falls, Mountain Home in Idaho, including Ada County, Canyon County, Gem County, Twin Falls County and elsewhere in Idaho.  We also service clients in Portland, Lake Oswego, Gold Beach, Brookings, Port Orford, Medford, Oregon, and all over the Pacific Northwest!