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[RC] Fwd: when is a release a release? - John Teeter

From: "Keith W. Kibler" <KWKibler@xxxxxxxxxxx>
Date: September 16, 2009 6:06:13 PM PDT

Diane,

 I am an Illinois lawyer, not a California lawyer. That being said, there is absolutely nothing known as "being  dismissed automatically".  If  one is sued and  such a release is a  defense the jurisdict ion being sued in then  the release would be raised as a defense.  In most  jurisdictions,  the release would not be valid  for  willful  and wanton  acts, which is usually  considered to be more culpable than  ordinary negligence  but of course,  less culpable than an  intentional act.  Mean  while,  you have to have a lawyer to make all of those arguments and by the time those are arguments are made, you have spent  at least a couple of thousand dollars if not more. It not like you write the Judge and say "matter of law" and the case is tossed.
 I sit on more than one not for profit boards. I tell everyone on those boards that they absolutely should have an umbrella policy  of insurance. Most home owners policies have them as an available and relatively low cost additional add on of some type.  I get mine from my State Farm home owners agent. In my opinoin, if you cant afford one you should not be serving on a board on a board with the public. Releases are a good thing, but they are not a guarantee that something that could happen might not cost you a whole lot of time,  aggravation and money that you never planned on.

Keith Kibler
Shawnee Sunrise Farm
Marion IL, and legal beagle 
-------
Trefethen wrote:

CK wrote:
Isn't AERC supposed to set a good example? What about insurance issues?

There are no insurance issues.  All AERC members are now required, as a condition of membership, to sign a release which contains a clause which states that they promise not to sue AERC or file an insurance claim, even if someone in ride management is negligent and causes grave bodily harm or loss.  This is known as an "agreement not to sue" clause.

Most of the membership has dutifully signed this release.  Many are under the assumption that you "cannot sign away your right to sue".  They are wrong.  In California, where all lawsuits against AERC or its agents must be filed, this type of clause has been upheld in our courts.  The only times I know of where an agreement not to sue clause has been stricken down are 1) a parent signs the release for a child, 2) you can prove you were coerced into signing the release and 3) the clause is ruled against public interest.  But for plain vanilla sports endeavors, if you sign the release, get hurt and then try to sue, your lawsuit will be dismissed "as a matter of law", ie, you do not even get to argue your case.  You signed the release so you can't win the lawsuit.  It is dismissed automatically.  Period.