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Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.

Wolfe v. AmeriCheer, Inc., 2012 Ohio 941; 2012 Ohio App. LEXIS 827

More support that the original Zivich decision did not just apply to non-profits or charities.

Many decisions from other states have dismissed Ohio’s court decision upholding the right of a parent to sign away a minor’s right to sue. Several other state courts have dismissed the Ohio decision Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998), decision as “non-persuasive.” These courts have identified the decision as applying only to charities or non-profits to keep insurance costs down.

This decision from an Ohio Appellate court dismisses those ideas and holds a release used by a commercial enterprise signed by a parent on behalf of minor stops the lawsuit by the minor.

This case involved an accident at a cheerleading competition. (Yes, it is outside the normal range of cases I write about; however, it is valuable to the outdoor recreation community.) The plaintiff was 13 years of age and part of a cheerleading team sponsored by a commercial business. This team was not part of a public or private school.

The competition was put on by the defendant. To enter the competition the mother of the plaintiff had to sign a Medical Treatment Authorization and Release of Liability. The language of the release part of the form is included in the decision, but that language barely makes the minimum language necessary to be a release.

The plaintiff was a “base” who supported and lifted other cheerleaders into the air. In this case, the “flyer” fell landing on the plaintiff injuring her. She suffered a T8 spinal compression fracture.

The plaintiff sued based on the:

…wreckless, wanton and complete disregard for the safety of Plaintiff, Defendant failed to provide the proper spotters and coaching, as a result Plaintiff was caused to sustain severe and permanent injuries to her person when her team members fell onto her person.

She claimed the failure of the spotters to be in a proper position was more than negligence it “constituted reckless and wanton disregard for Lindsay’s [the plaintiff] safety.” These allegations would take the issue out of simple negligence, which can be protected by a release, to an issue that must be decided by a jury.

The defendants argued the release and the doctrine of primary assumption of the risk. The trial court granted the defendants motion for summary judgment holding both the release and the doctrine of primary assumption of the risk barred the plaintiff’s claims.

So?

In Ohio, the doctrine of Primary Assumption of the risk is occurs when a plaintiff:

…voluntarily engaged in a recreational activity assumes the inherent risks of that activity and cannot recover for injuries sustained while engaging in that activity unless the defendant acted recklessly or intentionally in causing the injuries

As long as the rules of the game or sport are being followed or someone is acting recklessly or intentionally, a player cannot recover from their injuries.

Negligence is synonymous with:

…with heedlessness, thoughtlessness, inattention, inadvertence, and oversight, and conveys the idea of inadvertence as distinguished from premeditated or formed intention, or a conscious purpose to do a wrong act or to omit the performance of a duty.

Negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor.

Contrast negligence with Willful, wanton or reckless conduct which is defined by Ohio’s law as:

….a failure to exercise any care whatsoever by one who owes a duty of care to another, and the failure must occur under circumstances where there is a great probability that harm will result from the lack of care

Evidence of willful, wanton or reckless conduct can be shown by acts of “…stubbornness, obstinacy, or persistency in opposing that which is right, reasonable, correct, or generally accepted as a course to follow in protecting the safety of others.”

Reckless disregard for the safety of another occurs if one does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable person to realize, not only that his conduct creates an unreasonable risk of harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

The court characterized the cheerleading competition as a sporting event. As such, unreasonable risk by participants at a sporting event must take into account the way the particular game is played, including the rules, customs and foreseeable conduct of the participants.

To continue her claim based on the greater than simple negligence allegations, the complaint and motions of the plaintiff must assert acts or omissions on the part of the defendant that prove the willful, wanton or reckless conduct or misconduct. The court could not find anything in the pleadings or the motions that supported those claims.

These facts do not demonstrate a disposition to perversity on the part of the spotters or a failure to exercise any care whatsoever. Therefore, an issue as to whether the spotters’ conduct was wanton does not exist.

The court upheld the lower court decision. In doing so the court did make one statement, which was quite interesting.

It is unfortunate that Lindsay was seriously injured at the competition, and we realize that, because of the accident, she has suffered a great deal. However, there was no evidence of recklessness or wantonness that renders AmeriCheer [Defendant] liable for damages.

So Now What?

This decision upholds the prior decision in Zivich. Decisions that I’ve written about where Zivich was dismissed will not be changed, but those decisions will have a lesser effect in the future. See Delaware holds that mothers signature on contract forces change of venue for minors claims and Alabama follows the majority of states and does not allow a parent to sign away a minor’s right to sue, (Zivich only applies to charities), Texas follows majority with appellate court decision holding a parent cannot sign away a minor’s right to sue and Iowa does not allow a parent to sign away a minor’s right to sue (Zivich only applies to protect volunteers).

This case also supports the use of a release in Ohio to stop a lawsuit by a minor when a minor is injured and the release is signed by a parent or guardian.

What do you think? Leave a comment.

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