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Often times great information will be provided online. Many law firms offer free, general information online, but remember that you are not receiving legal advice and general information will not protect you from lawsuits or other legal issues. Nevertheless, look at the 50-state chart generated by Matthiesen, Wicker, & Lehrer, S.C., an insurance litigation firm, which outlines general information on provisions you will likely find in exculpatory agreements and liability waivers, as well as state-specific information. This week, look for your home state (or future career’s home state) in the chart. First, has your state enacted a statute pertaining to exculpatory agreements? What drafting guidelines apply in your home state? Are there any public policy concerns you should be aware of? Moreover, look at a couple geographical neighboring states’ laws and policies. Do you see any similarities or differences between your state and nearby sister states? How might differences alter how you draft your exculpatory agreements or liability waivers? And, are there any concerns with what you learned about exculpatory agreements in sports that conflict with what you see from this chart? [You must properly cite your Sharp text and at least one outside resource using APA format, not including constitutional provisions, statutes, ordinances, or other laws, rules, and regulations.] +400 words
Exculpatory agreements are contractual provisions that release one party from liability for their own negligence. In the United States, exculpatory agreements have been a source of debate because they can be used to bar claims and allow parties to essentially contract away their right to sue. The enforceability of such contracts varies by state and depends on the context in which they are used.
My home state, Texas, has enacted numerous statutes pertaining to exculpatory agreements. For example, Texas Business & Commerce Code Section 27.01 specifies that any provision or clause in a contract exempting anyone from liability for damages arising from gross negligence or intentional acts is void as against public policy unless it is found in an insurance policy provided by an authorized insurer (Texas Bus & Com Code § 27.01). Additionally, Texas courts may consider several factors when determining whether an agreement should be enforced – including the extent of negotiations between the parties; the meaning of language used; and whether enforcement would cause injustice or harm public welfare (Bruni v Brown Cty Water Control & Improvement Dist., 862 S W 2d 828-29 (Tex App 1994)). Furthermore, all waivers must meet certain requirements under Texas law: They must be written in clear language with prominent disclaimers and signed knowingly by both parties (Bruni).
When looking at surrounding states’ policies on exculpatory agreements, similarities become evident across states within this region. All nearby states explicitly require that any terms released must not involve conduct amounting to gross negligence or intentional acts (Cannizzo v Empire Fire & Marine Ins Co., 541 So 2d 1166–67 (La 1989); Westphal v Lowcountry Reg’l Transp Auth., 645 SE2d 264–65 (SC 2007); Franko v Moss Bluff Boat Club Inc., 539 SW3d 793–94 (Ky 2017)). Moreover, neighboring states also often look at similar factors such as whether there was sufficient negotiation between both parties and if enforcing the agreement would lead to unjust results if enforced(Franko; Cannizzo; Westphal).
Differences exist among these regional laws too: while all southern states involved impose limits on releasing liability involving gross negligence/willful misconduct – Mississippi only allows limited releases of future claims rather than existing ones while Louisiana does not permit its citizens from contracting away liabilities associated with consumer protection laws(Miss Rev Stat Ann § 75-24-13; La Civ Code Art 1967). These differences could be critical when drafting an exculpatory agreement because failing to include specific details about each state could result in unenforceable contracts or even legal penalties depending on applicable laws. Furthermore, many sports organizations use waivers/releases that apply across multiple jurisdictions which might also conflict with local rules governing operation(US Legal Forms Inc.).
In conclusion, it is important for businesses operating within different geographic regions understand potential risks associated with using exculpatory agreements as well as relevant state statutes before entering into any contractual relationship requiring them. While many similarities exist between my home state and its neighbors regarding general outlines governing these types of clauses – notable variations do apply which suggest greater review prior to executing documents containing releases/waivers will ultimately help protect all parties involved regardless where services are provided.(Sharp JL Pg 456)
Work Cited:
Sharp Jr., John L.. Cases and Materials on Sports Law Second Edition.. Carolina Academic Press,. 2020