Free South Dakota Liability Waiver Form

South Dakota is one of the friendlier states for a well drafted participant release, and the reason is easier to state than most: the Supreme Court has enforced these agreements twice at the summary judgment stage, and the statute people expect to block them turns out to say something much narrower. What decides South Dakota waiver cases is not clever wording but how the paper was put in front of the signer.

Everything below is background reading, not legal advice, and it cannot account for whatever is peculiar about your operation. Run your finished form past a lawyer admitted in South Dakota before a single participant signs it.

How South Dakota treats liability waivers

Start with the two decisions that actually enforced a release. In Lee v. Beauchene a stock car driver hit a hole on a dirt track near Jefferson, flipped, and was paralysed from the waist down. He had signed a Voluntary Release, Assumption of Risk and Indemnity Agreement before entering the restricted area. The court affirmed summary judgment for the track owner, observing that in the absence of a legislative directive, releases of this kind have withstood attacks that they are contrary to public policy. Seventeen years later, in Holzer v. Dakota Speedway, a pit crew volunteer was hit by a wheel that broke loose from a race car. The court reached the same result and added the line that matters most to anyone drafting in this state: in South Dakota no such legislative directive exists.

Now the statute. SDCL 53-9-3 says that all contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud or willful injury to the person or property of another or from violation of law whether willful or negligent, are against the policy of the law. Read the list carefully. Fraud, willful injury, violation of law. Ordinary negligence never appears, and the phrase whether willful or negligent attaches to violation of law, not to injury generally. That is why both Lee and Holzer cite the section only when they are describing what a release cannot swallow, never as a reason to strike one down.

The third case in the trio is the cautionary one. In Johnson v. Rapid City Softball Association a player tore up her ankle sliding into third and the circuit court threw her claim out on a release printed along the bottom of her team's roster. The Supreme Court reversed. A release, it said, is contractual in nature and governed by the law of contracts, so the elements in SDCL 53-1-2 apply, consent among them, and to be valid a release must be fairly and knowingly made. Whether this player had consented to anything beyond a roster was a genuine issue of fact, and resolving it on summary judgment was error.

Waivers signed for minors in South Dakota

Here the honest answer is that South Dakota has not answered. Research for this page found no statute addressing parental pre-injury releases and no South Dakota appellate decision deciding whether a parent can surrender a child's own claim before anything has happened. Lee, Johnson and Holzer were all adult participants. If someone tells you South Dakota allows parental waivers, ask them for the citation, because there does not appear to be one.

What the code does fix is everything around that hole. SDCL 26-1-1 sets minority at under eighteen. SDCL 26-2-3 allows a minor to make most contracts, but SDCL 26-2-6 gives the minor a power of disaffirmance: a contract made before sixteen can be undone before majority or within a year after it, and one made after sixteen can be undone on restoring the consideration. A release signed by a fifteen year old on their own, in other words, is a document the fifteen year old can tear up later. SDCL 26-1-3 lets a minor bring suit in the same manner as an adult so long as a guardian or conservator is appointed to conduct the case, and section 15-2-22 takes the whole of minority out of the limitation clock, capped at one year after the disability ends.

After an injury the picture is unusual. SDCL 29A-5-411 lists the powers of a conservator, including the power to allow, pay, reject, contest or settle any claim by or against the minor by compromise, and the chapter says those powers may be exercised without prior court authorization except as otherwise provided. No general requirement of judicial approval for compromising a child's tort claim turned up in chapter 29A-5, which is not the pattern in many states. Confirm that with South Dakota counsel before you rely on it in a settlement.

What the waiver must say to hold up in South Dakota

Compare the two forms the court has looked at and the drafting rules write themselves. Holzer adopted a pair of observations first set out in Justice Wuest's separate writing in Johnson: an anticipatory release is much more likely to be enforced when it lives on a separate document rather than being buried inside an application, a rental agreement or a sign-up sheet, and the more inherently dangerous the activity, the more likely the release is upheld.

Johnson failed the first of those. The release sat at the foot of the roster, below the team members' signatures, and the court noted pointedly that it did not contain a plain and clear statement directly before the signature lines. The coach had handed the sheet round calling it the roster the players needed to sign. Holzer passed. It was a standalone Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement, its operative language was set in block capital letters in bold, and the words I HAVE READ THIS RELEASE were printed on each signature line so that the signer wrote across them. The form in Lee closed the same way, with a capitalised block stating that the signer had read the document, understood it to be a release of all claims, and assumed the risk inherent in racing.

Three practical consequences. Put the release on its own page and give it a heading that names it. Print a short acknowledgment immediately above where the pen goes, not three paragraphs earlier. And keep the wording unambiguous, because whether contract language is ambiguous is a question of law for the judge, and under Enchanted World Doll Museum v. Buskohl language is ambiguous when it is reasonably capable of being understood in more than one sense. One more, from Johnson: brief your staff. A release is invalid if its nature was misrepresented, and a well meaning instructor who calls the form a sign-in sheet has just handed the other side its argument.

Gross negligence and what a South Dakota waiver cannot cover

SDCL 53-9-3 draws the ceiling, and Holzer states the rule in one sentence: releases construed to cover willful negligence or intentional torts are not valid and are against public policy. Lee said the same thing more quietly, citing the section for the proposition that valid releases are generally not construed to cover willful conduct.

The test for crossing that line comes from VerBouwens v. Hamm Wood Products, which both waiver cases quote. Willful and wanton misconduct is something more than ordinary negligence but less than deliberate or intentional conduct, and conduct is gross, willful, wanton or reckless when a person acts or fails to act with a conscious realization that injury is a probable, as distinguished from a possible, result. Ordinary negligence is the merely possible injury. Intentional conduct is a further step again, requiring substantial certainty that harm will follow.

Notice how both plaintiffs lost on that standard. Lee called the track operator grossly negligent and careless but pleaded no specific act that was anything other than ordinary negligence. Holzer alleged reckless disregard, yet the record showed the pit area had been in the same place for three years without incident and that the axle failure could not have been spotted on inspection, so there was nothing from which conscious realization could be inferred. South Dakota has never squarely decided whether gross negligence, treated as a distinct degree of fault, can be released at all; the cases fold it in with willful and wanton conduct and resolve matters on the evidence. Draft on the assumption that it cannot be released. Say so in the form, add a severability clause, and remember the third item in section 53-9-3: a release will not save an operator whose violation of a statute or ordinance caused the injury.

Electronic signatures in South Dakota

Chapter 53-12 of the South Dakota Codified Laws, headed Electronic Transactions, is this state's version of the Uniform Electronic Transactions Act and dates from 2000. Section 53-12-13 provides that no record or signature may be denied legal effect or enforceability solely because it is in electronic form, and section 53-12-14 extends that to a contract formed using an electronic record. Sections 53-12-15 and 53-12-16 supply the equivalences: an electronic record satisfies a law requiring a writing, an electronic signature satisfies a law requiring a signature.

Two sections shape how an online waiver should be built. Section 53-12-8 applies the chapter only to transactions between parties each of which has agreed to conduct transactions by electronic means, with that agreement determined from the context and surrounding circumstances including the parties' conduct, so make the choice to sign electronically an explicit step rather than an assumption. Section 53-12-21 attributes an electronic record or signature to a person if it was the act of that person, provable in any manner including the efficacy of a security procedure, which is the reason to capture identity, device and timestamp rather than just a typed name. Section 53-12-25 completes the set: an electronic record satisfies a retention requirement if it accurately reflects the information and remains accessible for later reference.

The exclusions in section 53-12-3 are worth knowing about but do not touch a participant release. They cover wills and testamentary trusts, most of the Uniform Commercial Code, and transactions under chapter 15-6 or otherwise involving the Unified Judicial System. A waiver between a business and a customer is an ordinary private contract and sits comfortably inside the chapter.

How to use this form in South Dakota

Download the Word version and work through the bracketed placeholders: your legal business name and the entities and people you want covered, the activity and where it happens, and South Dakota plus your county in the governing law line. Leave the release block on its own page with its heading intact, keep the capitalised acknowledgment directly above the signature line, and describe the real hazards of your activity rather than reciting generic risk language. Strike out anything that tries to shorten the time for bringing a claim, since SDCL 53-9-6 voids that. If you run horses or a rodeo, the SDCL 42-11-5 warning has to go into the written contract in clearly readable print and onto a posted sign in black letters at least an inch high near the stables, corrals, track or arena. If you charge admission to a farm or ranch experience, add the full agritourism warning from section 20-9-16.1 and post it at the entrance. Delete the drafting notes, then have a South Dakota attorney read the result.

Collecting signatures online works the same way. Rebuild the sections as blocks in a Waiver.com template, keep the release as a single block of its own with the acknowledgment as the last line before the signature field, add participant and guardian fields, and publish the version before you send the link out. Each signature then binds to a dated, published version of the document, which is the record that answers a Johnson style argument about what the signer was actually shown.