Delaware decision upholds a release signed by a parent against a minor’s claims
Posted: August 13, 2012 Filed under: Case Analysis, Delaware, Health Club, Playground | Tags: Adventure travel, DE, Delaware, Delaware Supreme Court, Hockessin Delaware, Minor, New Castle County Delaware, Release Leave a comment »Hong v. Hockessin Athletic Club, 2012 Del. Super. LEXIS 340
One more state recognizes the need to allow people to decide to waive a claim to allow their children to participate.
In this case, the mother of the injured child filed a claim after the child was hurt on playground equipment at a health club. The child was three years old when he fell and broke his arm.
The release was contained in the Membership Application and Agreement. Both parents signed the agreement and listed their three children on the agreement as members of the club.
The plaintiffs sued for negligence, which was not clearly defined in the case or as set forth by the court in the complaint.
Summary of the case
Delaware requires that the language in a release be crystal clear and unequivocal. The parties to the release must contemplate a release when they make the agreement. The crystal clear and unequivocal language is met if the contract provisions include language “specifically referring to the negligence of the protected party.” The court in reviewing the release stated:
Here, Hong signed a comprehensive waiver of liability and release in connection with her Membership Agreement that expressly stated that she (and all others on her membership) assumed the risk of “any injury or damage incurred while engaging in any physical exercise or activity or use of any club facility on the premises,” including the use of “any equipment in the facility” and participation “in any activity, class, program, instruction, or any event sponsored by HAC.”
HAC is the acronym for the defendant health club, Hockessin Athletic Club.
The plaintiff argued that the release only applied to activities “sponsored” by HAC such as classes, not just injuries from being there.
The court then looked at the complaint on its whole and found the complaint failed to allege any claim of negligence with specificity. Consequently, the court found the complaint also was to be dismissed because the complaint failed to state a claim.
So Now What?
Maybe this will place Delaware in the category of a state where a parent can sign away a minor’s right to sue. However, this is a decision of the trial court, and this case can still be appealed to the Delaware Supreme Court. If this case is not appealed, it may be the start.
So for the time being, you cannot rely on this case, and you probably can only rely on it if it is not appealed for the County of New Castle Delaware.
This case also points out the importance of making sure your release is written correctly. Here the court stated that a release must include the word negligence of the defendant or person to be protected.
What do you think? Leave a comment.
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Playgrounds will be flat soon
Posted: October 7, 2010 Filed under: Playground, Standards | Tags: Adventure travel, JimMoss, liability, playgrounds, Recreation Law, Recreation-Law.com, Ropes course, Standards, summer camp, TravelLaw Leave a comment »No swings, teeter totters or anything above a blade of grass…artificial grass.
Cabell County Schools are removing swing-sets from all elementary school playgrounds. The swing-sets are being
Swing seat rust (Photo credit: cynicalview)
removed because of insurance issues and lawsuits stemming from swing-set injuries.
In the past two years, the school district has settled two swing-set claims and is fighting two swing-set related lawsuits.
However, there was a quote that caught my attention. “”In this day and age, we have to do everything we can to keep kids safe,” said Jedd Flowers of the school district.”
Why? Why is it the school systems’ job to keep kids safe? There is a difference between falling down or falling off a swing and being kept safe. This is not an issue where young children are being put at risk. At what point in time do we start putting kids in bubble wrap before sending them out the door.
See Risk Management: Preventing Injuries or Preventing Lawsuits? for more of my comments on this idea.
It is this quote that sent me through the roof!
Many of the county’s elementary schools use mulch around their swing sets, although national safety standards now call for rubber-based surfaces, Stewart said. Those types of surfaces can cost at least $7,500 per swing set, he said.
A new standard created by some do gooder group has forced the removal of swing-sets from the school yard. Sure rubber surfaces are better but not everyone can afford one. All the creation of this standard did was eliminate swing-sets not keep kids safe. At least it is going to be a standard that will eventually be obsolete because no on will have a swing set.
A commercial swing-set with four swings costs a playground about $1000 to $1500. However, when you add the cost of the rubber matting the total price of a swing-set is $9000! Or roughly 6 swing-sets.
When I said flat ground? The swing-sets are not going to be replaced with anything because the school district no longer deals with playgrounds.
The dictionary will have to change its definitions; playground will now be a synonym for field.
See School system removing swings
For more articles about how ridiculous standards are see Can a Standard Impede Inventions?, Basics of the Article are Good – But it confuses certification, accreditation and most importantly standards. and This is how a standard in the industry changes…..but….
Sorry my headline is incorrect. Teeter totters were removed years ago because they were dangerous………
What do you think? Leave a comment.
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