We have all been there. You wait in a long line to sign a son or daughter up for an activity in which they are excited to participate. By the time you get to head of the line, you are ready to quickly sign anything – including the innocuous-sounding registration form. Even if you don’t read it, if someone gets seriously hurt, signing such a document can be a big mistake.
Many of these forms contain pre-injury releases of liability – often buried and in small print. While treated differently in many States, in Massachusetts, such a release may well bar a subsequent case regardless of the seriousness of one’s injuries. For example, in Cormier v. Central Mass. Chapter of the Nat. Safety Council, 416 Mass. 286 (1993), the Massachusetts Supreme Judicial Court upheld such a release finding that the “allocation [of] risk by agreement is not contrary to public policy.” More to the point, the Court reasoned that placing the risk of negligently caused injury on an inexperienced consumer as a condition of that person’s voluntary choice to engage in a potentially dangerous activity ordinarily does not contravene Massachusetts public policy. In the absence of fraud, deceit or undue duress, requiring a person to sign such a release before participating in such an activity does not render the release unconscionable. So you’re stuck, right? Not always.
Each case must be examined on its own facts. The language of these releases varies widely. Some are broad, others narrow and all are subject to interpretation. Doubts about the interpretation of the release must be resolved in the injured person’s favor, but the law books are littered with cases that ended badly for the Plaintiff due to these releases. In addition, there is a body of law that stands for the proposition that these releases cannot protect against claims for gross negligence nor can they protect against liability arising out of the violation of a statutory or regulatory duty. See White Const. Co., Inc. v. Commonwealth, 11 Mass. App. Ct. 640, 647 (1981). Finding such statutory and regulatory duties can be difficult, but finding one can be decisive and render a claimed release void, allowing the case to proceed.