Last year, a new law took effect in Montana that allows waivers/releases to be enforceable, except against claims of gross negligence or against defective equipment claims. The new law, Montana Code Anno. § 27-1-753, states:

27-1-753. Limitation on liability in sport or recreational opportunity.

(1) A person who participates in any sport or recreational opportunity assumes the inherent risks in that sport or recreational opportunity, whether those risks are known or unknown, and is legally responsible for all injury or death to the person and for all damage to the person's property that result from the inherent risks in that sport or recreational opportunity.
(2) A provider is not required to eliminate, alter, or control the inherent risks within the particular sport or recreational opportunity that is provided.
(3) (a) Sections 27-1-751 through 27-1-754 do not preclude an action based on the negligence of the provider if the injury, death, or damage is not the result of an inherent risk of the sport or recreational opportunity.
(b) This section does not prohibit a written waiver or release entered into prior to engaging in a sport or recreational opportunity for damages or injuries resulting from conduct that constitutes ordinary negligence or for risks that are inherent in the sport or recreational opportunity.
(c) Any waiver or release for a sport or recreational opportunity must:
(i) state known inherent risks of the sport or recreational opportunity; and
(ii) contain the following statement in bold typeface: By signing this document you may be waiving your legal right to a jury trial to hold the provider legally responsible for any injuries or damages resulting from risks inherent in the sport or recreational opportunity or for any injuries or damages you may suffer due to the provider's ordinary negligence that are the result of the provider's failure to exercise reasonable care
(d) Any waiver or release for a sport or recreational opportunity may still be challenged on any legal grounds.
(e) Any waiver or release for a sport or recreational opportunity executed in compliance with this section is not prohibited by or subject to the provisions of 28-2-702.
(4) Sections 27-1-751 through 27-1-754 do not apply to a cause of action based on the design, manufacture, provision, or maintenance of sports or recreational equipment or products or safety equipment used incidental to or required by the sport or recreational activity.

How This Law Affects Waivers/Releases

This law includes specific requirements for waivers/releases, which are:

  • The document “must” state known inherent risks of the sport or recreational opportunity. The new law doesn’t specify risks, however. For releases involving equine facilities and activities, it can’t hurt to use the list of “risks inherent in equine activities” taken directly from the Montana Equine Activity Liability Act [at Section 27-1-726(7)].
  • The document “must” contain the following in bold letters: “By signing this document you may be waiving your legal right to a jury trial to hold the provider legally responsible for any injuries or damages resulting from risks inherent in the sport or recreational opportunity or for any injuries or damages you may suffer due to the provider's ordinary negligence that are the result of the provider's failure to exercise reasonable care.”

Liability waivers/releases, regardless of the state, are important documents. Consider seeking the advice of knowledgeable legal counsel when you have questions about them.