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Legal VIEW

Language of a Release Is One Key Factor

April 10, 1986|JEFFREY S. KLEIN

If you've ever gone river rafting, taken a parachute lesson or enrolled in a school for race-car drivers, you were probably asked to sign a legal document before the excitement began.

The document is called a release.

It is a contract that contains your promise that you won't blame the company that supplied you with the services if you get injured.

If you're like most people, you probably wondered whether the contract was legally enforceable. Would it stand up in court? If you get hurt, could you still sue even though you apparently signed your rights away?

Easy-to-Read Release

You can sue, but as long as the release was properly written and easy to read, you were not induced to sign it by fraud or duress and its terms were not so ridiculous as to violate public policy, then you are going to have a tough time convincing a court that you should win.

That's probably true even if you signed the release without reading it. In a case decided last year by a California Court of Appeal, a man sued an Elsinore parachute school after he broke his wrist in his first parachute jump. The jumper had signed a document entitled--in bold-face type--"Agreement and Release of Liability."

The student-jumper said he did not realize what he was signing, that he thought he might have been signing up to buy a photograph, but the court was not persuaded.

"It is well established," the court said, "in the absence of fraud, overreaching or excusable neglect, that one who signs (a contract) may not avoid (its) impact . . . on the ground that he failed to read (it) before signing it."

Clear Language

Most important, in this case, the court said, the release was written in clear, understandable language; it was printed in large type, and the crucial paragraphs appeared in bold-face type, so anyone who signed it had to understand what he was signing.

The critical paragraph, initialed by the student, said: "I am aware that parachute instruction and jumping are hazardous activities, and I am voluntarily participating in these activities with knowledge of the danger involved and hereby agree to accept any and all risks of injury or death."

This paragraph, the court said, was not "disguised in legalese" but was written in "simple, clear and unambiguous language understandable to any lay person.

"It would be hard to imagine language more clearly designed to put a lay person on notice of the significance and legal effect of subscribing it."

That doesn't mean that every release you sign will be enforced against you. There are several cases in which courts have refused to enforce a release, because it was too difficult to decipher or written in small type.

One case involved a release agreement between a race-car driver and the race sponsor. In what the court called a "convoluted 147-word sentence," the agreement said the driver would "save harmless and keep indemnified" the race sponsor. A non-lawyer could not be expected to understand this legalese, the court said, and allowed the injured driver to sue even though he had signed the release.

That's one sure way to encourage lawyers to write agreements in understandable English.

Attorney Jeffrey S. Klein, The Times' senior staff counsel, cannot answer mail personally but will respond in this column to questions of general interest about the law. Do not telephone. Write to Jeffrey S. Klein, Legal View, The Times, Times Mirror Square, Los Angeles 90053.

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