To: Larry Craig
From: Student
Re: Express Assumption of Risk
Question presented
1. Whether the release of liability is enforceable in order to show Adair expressly assumed the risk. Statement of facts
William Oldfield got into a habit of meeting on Wednesday night to rock climb. He, and others whom just showed up, would climb Handley rock. Oldfield would supply the ropes and other gear needed for himself and other climbers. After several years of climbers meeting and climbing, Oldfield was approached by a climber who was an attorney. He told Oldfield that he should have any climbers sign a release of liability form. The attorney prepared a release form and brought it to Oldfield and he started having climbers sign the release. Greg Adair was seriously injured in a rock climbing fall at a weekly climbing session that was operated by
Oldfield. Adair has sued Oldfield for damages based on a theory of negligence. Adair did sign a release of liability prior to his climb in which he sustained injuries.
Summary of arguments
Whether our defense of express assumption of risk will prevail against Adair's claim of negligence will turn upon the enforceability of the Release of Liability form signed by Adair. If the release is effective, then Adair will have been deemed to assume the risks set forth in the release. In order to be effective, a release must meet several requirements. I believe the release given to Adair by Oldfield satisfies these requirements, and therefore our defense of express assumption of risk will be successful, and Adair will not prevail.
Argument
A. THE RELEASE DID NOT INVOLVE THE PUBLIC INTEREST
Pursuant to the case of Buchan v. U.S. a release of liability is only effective if it does not involve the public interest. The court stated in order to determine if an activity is of public interest turns on two factors. The first factor is whether the activity involves the public interest when the party seeking exculpation is engaged in performing service of great importance and practical necessity to the public. The second is whether the party seeking exculpation has a decisive advantage of bargaining strength against the members. As to the first factor, Oldfield was not engaged in performing a service of great public importance. He was simply the leader of a loosely organized rock climbing association. Generally, the sports and recreational events are not matters of great public importance.(Buchan). Releases of liability for injury have been upheld in activities

22 such as driving racecars, white water rafting, bicycle racing, and skydiving. Rock climbing is a recreational activity analogous to these activities, and therefore also would not be considered to be a service of great public importance. As to the second factor, Oldfield did not have a decisive advantage in bargaining strength over Adair. According to Adair's deposition, Oldfield did not force Adair to sign the release of liability. He admitted that nobody told him that if he did not sign the release, then he would not be allowed to participate in the rock climbing activities of the group. The deposition of Oldfield confirms that he did not force participants in the group to sign the releases, but merely requested that they do so. Therefore, Adair's signing of the release form was totally voluntary. He was not pressured to do so, and his signing of the release was not the result of any disparity in bargaining power. Thus, pursuant to Buchan, the release is enforceable.
B. THE TECHNICAL REQUIREMENT FOR A WRITTEN RELEASE WASMET
To be effective, the release need not be perfect. Instead, it need only clearly express an intent on the part of the releasor not to hold the released party liable for the consequences of his own negligence. (Buchan). To allow claims arising from hazardous recreational pursuits when valid releases have been signed would defeat the very purpose of having participants sign the releases, and therefore courts are willing to enforce them, as previously mentioned. To be effective, the release must meet several technical requirements. The court in Leon v. Family Fitness Center provided a thorough analysis of the requirements a release must meet. First, a release will not be enforceable unless it is easily readable. The release given to Adair satisfied this requirement. It was written in normal font and contained on a single sheet of paper. It was not excessive in length, and was clearly identified as a release of liability. Adair had ample time to review the release. Although Adair said he did not actually read the release, this should not matter. The release was clear as to its terms, and Adair signed it. Second, operative language of the release should be prominently distinguished from other language. The release signed by Adair satisfies this requirement. The particularly important provisions of the release are written in bold, capital letters. These provisions include the ones stating that Adair releases Oldfield from liability caused by the negligence of Oldfield or another participant, that the release applies to all risks and causes of injury or death, and that the signer of the release accepts full responsibility for all risks associated with rock climbing. Third, a release that alleges to release a party from the consequences of his own negligence must clearly express such an intent. Here, the release does allege to release Oldfield from any injuries his own negligence may cause to the participants who sign the release. However, the provision is clearly presented in bold, capital letters. In Leon, the court found that the release of liability signed by the plaintiff was not valid.
However, that release is readily distinguishable from the one signed by Adair. First, the release in Leon was only one part of a larger contract. Here, the Release was a free standing document.
Second, the release in Leon was written in text undifferentiated as to size, with no paragraphs or highlighting. In contrast, the release signed by Adair contained distinct paragraphs and contained bolded portions. In conclusion, the release signed by Adair met all of the technical requirements required in order for a release of liability to be considered valid.
Conclusion
In conclusion, the release signed by Adair did not involve the public interest, and has met all of the technical requirements and therefore is enforceable