or many people, one of the best aspects about Alaska is the incredible amount of adventures and excursions that are available in the state. Businesses in the Great Land offer an unending number of unique and exciting opportunities to see and experience this place we call home.

To balance the wants of a business to provide the activity with limited liability against the participants’ desire to engage in an activity that has known inherent risks, in 2001 the Alaska Legislature enacted a law that would limit the liability for Alaska businesses that engage in risk-laden activities. People who choose to willingly participate in these outings accept the risks as part of the adventure. The statute includes the following language:

AS 09.65.290. Civil Liability for Sports or Recreational Activities

1. A person who participates in a sports or recreational activity assumes the inherent risks in that sports or recreational activity and is legally responsible for all injuries or death to the person or other persons and for all damage to property that results from the inherent risks in that sports or recreational activity.
2. This section does not require a provider to eliminate, alter, or control the inherent risks within the particular sports or recreational activity that is provided.
3. This section does not apply to a civil action based on the negligence of a provider if the
   1. negligence was the proximate cause of the injury, death, or damage; or
   2. design or manufacture of sports or recreational equipment or products or safety equipment used incidental to or required by a sports or recreational activity.
4. Nothing in this section shall be construed to conflict with or render as ineffectual a liability release agreement between a person who participates in a sports or recreational activity and a provider.
5. In this section,
   1. “inherent risks” means those dangers or conditions that are characteristic of, intrinsic to, or an integral part of a sports or recreational activity;
   2. “provider” means a person or a federal, state, or municipal agency that promotes, offers, or conducts a sports or recreational activity, whether for pay or otherwise;
   3. “sports or recreational activity” means a commonly understood sporting activity, whether undertaken with or without permission, including baseball, softball, football, soccer, basketball, hockey, bungee jumping, parasailing, bicycling, hiking, swimming, skateboarding, horseback riding and other equine activity, dude ranching, mountain climbing, river floating, whitewater rafting, canoeing, kayaking, hunting, fishing, backcountry trips, mushing, backcountry or helicopter-assisted skiing, alpine skiing, Nordic skiing, snowboarding, telemarking, snow sliding, snowmobiling, off-road and all-terrain vehicle use.

Clearly, the language in the statute does not cover every excursion or activity that Alaska businesses offer as part of commerce. There will always be new and emerging opportunities that people wish to engage in. Therefore, many businesses rely on a Waiver of Liability to transfer the risk back to the participant who is willingly taking part in the activity to help reduce the residual risks posed to the business that may (or may not be) covered by Alaska Statute.

Black’s Law Dictionary defines a Waiver of Liability as “the intentional or voluntary relinquishment of a known right. Waiver is when a person intentionally and with full knowledge, gives away [their] right to exercise or chooses not to exercise that right which the person would otherwise possess.”

This enforceable contract is a formal agreement in which one party agrees not to hold another party liable for damages or injury. A signed liability waiver, however, is not a blanket exemption from liability for operators of a dangerous activity. These types of agreements are traditionally signed in ink or agreed to by electronic signature prior to the activity and are retained by the party that requires the waiver.

In Alaska, these activities are synonymous with adventure. Whether it is white-water rafting, helicopter skiing, indoor climbing, or a guided expedition to the top of Denali, most companies require these documents to engage in that venture.

The Waiver of Liability argument came to a head in 2008 when Claire Donahue sued the Alaska Rock Gym. Donahue decided in March 2008 to attend a class at the Alaska Rock Gym called “Rockin’ Women.” She testified that she chose the class because she thought it could be tailored to specific skill levels and because she “got the impression from the advertisements that that is the type of group it was, that it was a safe way to learn to climb.” According to court records, she fell about four feet from a bouldering wall and broke her leg.

The gym required Donahue to read a warning and sign a Waiver of Liability before taking the class. The agreement purported to release the gym from liability for any injuries suffered by participants in the climbing class. When the Alaska Rock Gym moved to dismiss the case, the plaintiff filed her own motion claiming that the gym had violated the Unfair Trade Practices and Consumer Protection Act, which allegedly made the release null and void.

In 2014, this case made its way to the Alaska Supreme Court after the lower court decided against Donahue. Justices affirmed the lower court ruling and stated that the release for all negligence signed by the plaintiff was valid and dismissed her case against the gym.

The appeal provided an opportunity for the Supreme Court to weigh in on the liability waiver portion. In that ruling, the justices stated, “Alaska recognizes that recreational releases from liability for negligence are not void as a matter of public policy, because to hold otherwise would impose unreasonable burdens on businesses whose patrons want to engage in high-risk physical activities.” The court also noted that, “such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the release.”

More importantly, the Supreme Court reviewed a conclusion from the lower court stating that three previously decided cases, when combined, provided an outline of what an “effective liability release” should contain:

1. the risk being waived must be specifically and clearly set forth (e.g. death, bodily injury, and property damage);
2. a waiver of negligence must be specifically set forth using the word “negligence”;
3. these factors must be brought home to the releasor in clear, emphasized language by using simple words and capital letters;
4. the release must not violate public policy;
5. if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so; and
6. the release agreement must not represent or insinuate standards of safety or maintenance.

The list of six items should be the basis in which all Waivers of Liability in Alaska are created. By using these six characteristics reviewed by the courts, an attorney can formulate a Waiver of Liability that can stand up in court when it is needed most. Take the time to reassess your company’s Waiver of Liability today and consult your attorney for specifics with your waiver to ensure that you do not end up holding what amounts to a piece of paper.