Release from Liability

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					                                  Release from Liability

A release from liability, sometimes referred to as a discharge, waiver, or exculpatory
agreement, is a contract for the current discharge from current or possible future liability.
Releases are sometimes used to release our schools from liability for negligent acts or
omissions on the part of the school during school trips, events, or internships. The
validity of releases depends on both state law, and the wording of the release itself. This
newsletter will explore the general principles that guide the wording and validity of
releases.

For a release to be considered a valid contract, it must fulfill the following requirements.
First, the release must be agreed to voluntarily. The student signing the waiver should
have sufficient time to review the exculpatory agreement, and sign it without time
pressure. The signer should have the opportunity to modify the waiver if he so desires, as
in the style of an arm's length transaction where both parties have equal bargaining
power. That is not to say the school must agree to the requested changes; only that there
be a meaningful opportunity to discuss the matter.

Second, the waiver should clearly and unambiguously alert the [student or signer] of the
form to the rights being waived. The language of the waiver should be very clear and
unmistakable as to the conduct or activity regarding which the school is releasing itself.
Note that because the school cannot release itself from liability for gross negligence,
which encompasses behavior that indicates a wanton or reckless disregard for human life,
strict liability, or criminal behavior, a waiver that attempts to release the school from
liability for conduct other than simple negligence is not enforceable. Only simple
negligence can be released, and the release should be limited in this way. Waivers
comprised of general language releasing the school from liability for all injuries,
damages, etc. will not be sufficient to release the school from liability for its own
negligent acts. Releases are construed strictly against the drafter, in our case, the schools,
and therefore, specificity in describing the rights being waived is essential.

Third, the [student or signer] of the waiver should be alerted to nature and importance of
the exculpatory clause. If the exculpatory clause is part of a larger form or agreement, the
student should be aware from looking at the contract that he is signing a waiver. Thus,
burying the exculpatory clause in fine print at the end of the form is ill advised. The
waiver should stand out to the signer, and he should be aware of its significance at the
time he signs it. The waiver aspect of a form with more than one purpose should be
separately acknowledged by the signer in order to indicate that he was aware of its
inclusion and importance. The legal test is whether a reasonable person signing the
waiver would be aware of what he is signing at the time of execution.

Note the fact that parents cannot release the school from claims that their child has the
right to bring, even if the child is a minor. Parents may, however, release the school from
claims that they have a right to bring. Minor students may or may not be deemed to have
the legal capacity to waive their rights, depending on all the circumstances. Only the
student can release the school from liability for claims that the student has the right to
bring. Similarly, the fact that a student signs a waiver does not bar his heirs from bringing
a wrongful death action in their own right.

Where field trips are concerned, it is relevant whether the field trip is required as part of
the curriculum, or is optional. Where the field trip or excursion is required to earn credits
for class, no alternatives classes are offered, and a signed release is required to
participate, a court will likely find that the student did not freely or voluntarily consent to
the release. The requirement of a field trip as part of a school curriculum, and the
necessity of a signed release in order to attend indicates to a court a lack of bargaining
power on the part of the signer. As explained above, unless the signer and the drafter of
the agreement are in positions of equal bargaining power, the release may be considered
void on public policy grounds.

Although exculpatory contracts are often disfavored by courts, and construed strictly
against defendants, a properly drafted and voluntarily assented to release may succeed.
Despite the fact that exculpatory contracts are sometimes held invalid on contract or
public policy grounds, they remain useful in mitigating damages, and in proving certain
legal defenses to a suit. The current trend of strictly construing releases, however,
indicates that it is not advisable to include a release in an enrollment agreement, or other
document which must be signed as a pre-requisite to attending one of our schools. The
practice of drafting a separate and specific release, as required is encouraged, and the
general principles outlined above should be followed. The following examples should
provide some guidance as to the language advisable in a basic release form:

If you have a specific question about a release being used at your school or about releases
in general, please contact the law department at EDMC.
                             RELEASE FROM LIABILITY

________________________ a student at The Art Institute of California-San Francisco
               (Name)
by my signature below, and intending to be legally bound, hereby acknowledge that I
have voluntarily elected to participate in the following activity:
________________________________________________________________________
(Program/Event/Activity)
on ______________at The Art Institute of California-San Francisco. I understand that I
           (Date)
am not required to participate in this activity, but voluntarily agree to do so, and I agree
to assume and take on myself all of the risks and dangers in any way associated with this
activity. I hereby release The Art Institute of California-San Francisco its corporate
parents and affiliates, their officers, directors, employees and agents from any and
all liability, claims and actions that may arise as a result of any negligent acts or
omissions on the part of the school, its employees, and agents, and for any property
damage or personal injury that I may sustain as a direct or indirect result my
participation in activity. I have read, fully understand, and have had sufficient time to
consider this entire release, and agree to be legally bound by it.

                                        RELEASE

        Please read this RELEASE carefully. It must be completed and signed by you,
and by your parents, if you are a minor. This is a legally binding RELEASE; by signing
this RELEASE, you are giving up the ability to make certain claims.
        I plan to participate in the trip to that has been planned in connection with The Art
Institute of California-San Francisco. The trip is scheduled for Friday, May 28, 2010. I
HAVE VOLUNTARILY ELECTED TO PARTICIPATE IN THIS TRIP. I
UNDERSTAND AND ACKNOWLEDGE THAT THIS TRIP IS NOT REQUIRED
BY The Art Institute of California-San Francisco. I understand that there are substantial
risks involved in this trip, including but not limited to the dangers connected with travel. I
understand that no person or program requires me to participate in this trip, but I want to
do so, despite the possible dangers and risks, and despite this RELEASE.
        I therefore agree to assume and take on myself all of the risks and responsibilities
in any way associated with this trip. In consideration of and in return for the services and
other things provided to me by The Art Institute of California-San Francisco I hereby
enter in to this RELEASE.
        I, by my signature below, and intending to be legally bound hereby, acknowledge
and agree that I am unconditionally releasing The Art Institute of California-San
Francisco, its corporate parents, affiliates, related entities, their officers, trustees and
directors, employees and agents (collectively referred to herein as the The Art Institute of
California-San Francisco) from all claims, suits and/or liability of any kind for
personal injuries or death, property damage, and any other consequences, losses,
damages or expenses which may occur in connection with this trip, whether or not as
a result of any negligent acts or omissions on the part of the school, its employees or
agents, relating to me, or from any act or failure to act, mistake or failure to supervise
on the part of the The Art Institute of California-San Francisco. I accept those risks and
assume full responsibilities for such injuries and other consequences.

I also waives any rights I may have pursuant to California Civil Code Section 1542,
which reads:

       “Section 1542. [Certain claims not affected by general release.] A
       General Release does not extend to claims which the creditor does not
       know or suspect to exist in her favor at the time of executing the release,
       which if known to her must have materially affected her settlement with
       the debtor.”

I have read this entire RELEASE and understand it. I have had the opportunity to review
this RELEASE with an attorney. I acknowledge that I have entered into this Agreement
freely and without any coercion or duress. I have also read and agree to abide by the rules
of this trip, as set forth by the chaperones.

Date:________________

Trip Participant (please print)_______________________________

Trip Participant (please sign)________________________________



Date:________________

Parent or Guardian of Minor________________________________

				
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posted:9/15/2012
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