February 13, 2009
Rodney J. Auth
Parks & Rec Business
PO Box 1166
Medina, OH 44258-1166
I read with interest and then concern Dr. Panza’s article No More Waivers, Releases or Consents: A Better way to protect yourself in the February issue of Parks & Rec Business. Mr. Panza’s ideas could cost the industry millions and probably void most insurance policies.
Mr. Panza is writing based on one lawsuit in one state, Connecticut. Recently as Mr. Panza noted the Connecticut Supreme Court reversed its holdings on releases and held them void in Connecticut. In 44 other states, releases are still valid and stop litigation.
In those 44 states that support releases, a release saves money. Mr. Panza’s argument may make sense in theory, but his article misinterprets the law. For a participation agreement to be effective a jury must decided that the parties understood and assumed the risk. That means the issue must go to trial. That will cost hundreds of thousands of dollars. Judges through motions cannot decide the facts, only whether the law. Thus, the trier of fact, a jury in a trial is the only group who can decide that the participant understood the risks of the activity and voluntarily undertook those risks.
That argument is open to a lot of interpretation by the jury and attack by the injured participant/plaintiff. No matter what the participation agreement states, the document, because it is not a release, is subject to interpretation and argument.
A release can be used to file a motion for summary judgment soon after the litigation begins. If accepted a release stops the litigation after only tens of thousands of dollars have been spent. Trials can take years; motions can take months so there is a major time savings when using a release.
Participation agreements do not stop litigation in any state by a minor. A release signed by a parent can stop litigation by a minor in five states and five additional states a release stops litigation for specific activities. Ohio, your home state allows a parent to sign away a minor’s right to sue.
Most insurance companies working in the outdoor recreation industry require insured’s to use a release. It is a condition precedent in the policy meaning if the insured does not use a release there is not coverage. I’ve personally been involved in this type of litigation.
Mr. Panza is correct in stating that the industry needs to do a better job of communicating to participants. The more a participant in a program knows about the programs and the risks, the less likely they will want compensation in the first place.
However the basic wall of protection for all adults in any activity and the only effective one in the vast majority of states is a release. As much as you may dislike using one, you will dislike even more testifying in trial about an injury, however minor, a participant in you program received.
When writing legal articles, an understanding of the law is critical to not provide wrong information.
James H. Moss
Cc Joseph A. Panza, Ed.D. email@example.com
Parks and Rec Business Magazine has a great article on background checks for adult volunteers of youth sports. It is a well written and well researched article that talks about an issue that is a common theme in many of my articles. The actions that people are taking only lull them into believing they are doing the right thing. In reality they are wasting time and money. The article Background Checks: Do they really get the job done? points out that most background checks are not going to find molesters.
What the article points out is no matter what an organization does, bad people are going to get through. In order to prevent this from happening, Parents must be involved in the process and keep their eye on the program and their children. Parents must make sure their child is never in a position where they can become a target. For an excellent discussion about this and a program to train kids see the Boy Scout of America program Guide to Safe Scouting. Several other sports organizations have developed similar programs.
From the Parent’s perspective you just can’t expect someone else to babysit your kids. No program whether sports oriented or program oriented is designed to work without the involvement of parents. The Boy Scouts of America requires the parent to agree to become involved when they sign their child up to be a scout. Dropping you children off and picking them up several hours later is a recipe for disaster both for you and your child.
For adult volunteers, be very wary of any parent who simply drops their kids off at your program. If you don’t know the parent, you will if something goes wrong and you won’t want too. The parents who sue are the ones who have no involvement in the program.
While investigating Boy Scout lawsuits I discovered one recurring theme. I boiled that analysis down to one simple question to determine whether or not a parent would sue for an injury to their child. The question? What is the name of the adult leader? If the parent answered Mr. Jones or Mr. Smith there was going to be a lawsuit. If the parents answered Bob or Jim then there was probably not going to be a lawsuit.
The difference was not the answer but how well the parents knew the person who was taking care of their kid and more importantly how well the parents were involved in the program. A parent who was involved in the program did not sue. Those parents knew how the program worked, invested their time in the program and were involved. Those parents knew the adult volunteer as a friend, as someone who invested their time and as such knew them by their first name.
Parents who were not involved did not understand the program, the work, the commitment the time it took adult volunteers to keep their child active and involved. Those parents were recognized more by their cars taillights because the only thing they saw was the parent driving away after dropping off the child.
Parents who are not involved or who do not understand the program are also the ones who will sue. They have no understanding of what the program is trying to accomplish or their understanding is superficial. They see a sports program as purely their child playing ball. They see the BSA or GSA as purely their child going camping. They have no concept of the time the volunteer invests. They do not understand the goals of the program and how those goals are achieved by the activity and not vice versa.
These parent’s kids are also the most likely to be molested because their parents are not around. A molester is looking for the kid that they can find alone. They stand out because they are out standing waiting to be picked up rather than being walked to their car by their parents.
Those programs can also be spotted by parents. Just as the victims are identified as being the ones left alone by parents, the problem adult volunteers are also alone. They seem to be the total and complete volunteer. They drive away or discourage help from other volunteers. They do not want help because it interferes with their ultimate goals.
Both types of people, children with no parental involvement and adults with no other parental involvement are possible problems.