The majority of states, pursuant to case law, do recognize the validity of releases excusing providers from liability for their own ordinary negligence, in the recreational context. In most jurisdictions, releases absolving providers from liability for their own negligence will be strictly construed against the drafter. However, case law and statutory law varies from state to state, and providers should consult with legal counsel prior to developing or utilizing a document which purports to release providers from liability for their own negligence. D. Importance of the Written Document. There are a number of purposes for using this type of document with recreation participants.
Participants can then make a choice about their decision to participate in the activity.
If participants choose to participate, they do so with knowledge of the risks involved and with the understanding that they will be responsible for injuries or death resulting from such risks, and for injuries or death resulting from providers' negligence, if that is also included in the document. The second purpose is more legal in nature. The document can serve to deter an injured party from filing a claim in the first instance. Once litigation has commenced, it provides the potential for summary dismissal of the case. If that effort is unsuccessful, the document can serve as evidence in trial that the participant was warned of the risks prior to engaging in the activity, assumed those risks, and thus is partially or wholly responsible for the resulting injury or damage.