Letter to the Editor: Parks & Rec Business

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.

Sincerely,





James H. Moss

Cc Joseph A. Panza, Ed.D. panzaj1@southernct.edu