Scott v. Altoona Bicycle Club, d/b/a the Tour de-Toona, 2010 Pa. Commw. Unpub. LEXIS 513

Scott v. Altoona Bicycle Club, d/b/a the Tour de-Toona, 2010 Pa. Commw. Unpub. LEXIS 513
Sarah Scott, an adult individual, Appellant v. Altoona Bicycle Club, d/b/a the Tour de-Toona, a Pennsylvania corporation, EADS Group, a Pennsylvania corporation, (dismissed) Lawrence J. Bilotto, an adult individual, USA Cycling, Inc., d/b/a United States Cycling Federation, a Colorado corporation, the Department of Transportation, Commonwealth of Pennsylvania, an executive agency of the Commonwealth of Pennsylvania, Huston Township, a Pennsylvania municipality
No. 1426 C.D. 2009
COMMONWEALTH COURT OF PENNSYLVANIA
2010 Pa. Commw. Unpub. LEXIS 513
June 21, 2010, Argued
July 16, 2010, Decided
July 16, 2010, Filed
NOTICE: OPINION NOT REPORTED
JUDGES: [*1] BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
OPINION BY: JOHNNY J. BUTLER
OPINION
MEMORANDUM OPINION BY JUDGE BUTLER
Sarah Scott (Scott) appeals from the June 24, 2009 order of the Court of Common Pleas of Blair County (trial court) granting summary judgment in favor of Altoona Bicycle Club, Inc. d/b/a the Tour de ‘Toona, ¹ a Pennsylvania corporation (ABC); Lawrence J. Bilotto, an adult individual (Bilotto); USA Cycling, Inc. d/b/a United States Cycling Federation, a Colorado corporation (USAC); the Commonwealth of Pennsylvania, Department of Transportation, an executive agency of the Commonwealth of Pennsylvania (DOT); and, Huston Township, a Pennsylvania municipality (Huston Township) (collectively, Appellees). The issues in this case are: (1) whether Appellees are entitled to judgment as a matter of law on the basis of the subject releases; (2) whether Appellees are entitled to judgment as a matter of law on the basis of express assumption of risk; and (3) whether the trial court erred in holding that Scott failed to adduce sufficient evidence of recklessness or gross negligence. For the reasons that follow, we affirm the trial [*2] court’s decision.
1 Although the caption refers to the event as Tour de- Toona, the actual title of the event is Tour de ‘Toona.
On July 29, 2005, after executing two releases, Scott participated in the 19.2 mile Martinsburg Circuit of the seven-day 2005 International Tour de ‘Toona bicycle race. The race was organized and promoted by the ABC, which received permits for the event from the USAC, the national governing body for competitive cycling that sanctioned the race, and DOT. Bilotto, DOT engineer and 2005 Tour de ‘Toona race director, applied for and evaluated ABC’s permit for the race. At some point during the race, the riders were required to descend Sportsman Road and make a 90 [degree] left turn where it intersects State Route 866 (SR 866) at a “T.” Huston Township owns and maintains Sportsman Road, and maintained State Route 866 through an agreement with DOT. During the race, Scott braked as she descended Sportsman Road and, as she entered the intersection, she rode wide toward the right edge of Sportsman Road, went into the grass off the berm and fell down a 30-inch drop-off on the right side of SR 866. As a result of this accident, she suffered multiple injuries which left [*3] her a paraplegic.
On September 12, 2006, Scott filed a complaint against Appellees seeking damages for her accident. She filed an amended complaint on March 15, 2007 asserting claims against ABC, USAC, and Bilotto for negligence, gross negligence and recklessness; against DOT and Huston Township for negligence and gross negligence; and against ABC and USAC for misrepresentation, failure to disclose and fraudulent inducement. Appellees denied liability and asserted in new matter, defenses of release, assumption of risk and immunity. Following extensive discovery, Appellees filed a motion for summary judgment on the basis of Scott’s waiver and assumption of risk, and immunity as to DOT and Huston Township The motion for summary judgment was granted by the trial court by order dated June 24, 2009, on the basis that Scott released the parties from liability, and that she voluntarily assumed the risk of her injuries. Scott appealed to this Court. ²
2 “The scope of this Court’s review of a grant or denial of summary judgment is limited to determining whether the trial court committed an error of law or an abuse of discretion.” Kaplan v. Southeastern Pennsylvania Transp. Auth., 688 A.2d 736, 738 n.2 (Pa. Cmwlth. 1997). [*4] “Summary judgment is appropriate only when, after examining the record in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Guy M. Cooper, Inc. v. E. Penn Sch. Dist., 903 A.2d 608, 613 (Pa. Cmwlth. 2006). The appellate standard of review is de novo when a reviewing court considers questions of law. Weaver v. Lancaster Newspapers, Inc., 592 Pa. 458, 926 A.2d 899 (2007). In reviewing questions of law, the scope of review is plenary, as the reviewing court may examine the entire contents of the record. Id.
Whether Appellees Are Entitled to Judgment On The Basis Of The Releases:
Scott argues that the trial court erred in holding that Scott’s claims are within the scope of the releases as a matter of law since they are exculpatory and invalid and unenforceable, and Appellees were in a better position to prevent her harm. She avers that immunity for Appellees cannot be granted based upon general language in a release, nor can liability for recklessness and gross negligence be released. Finally, she claims that there are genuine issues of material fact which prevent judgment as a matter [*5] of law. We disagree.
It is undisputed that, on March 3, 2005, in order to obtain a license from USAC to participate in USAC-sanctioned events in 2005, Scott completed an online application. As part of the application process, Scott was required to read and agree to an “Acknowledgement of Risk, Release of Liability, Indemnification Agreement and Covenant Not To Sue” (Membership Release). The Membership Release provided, in pertinent part:
I ACKNOWLEDGE THAT BY SIGNING THIS DOCUMENT, I AM ASSUMING RISKS, AND AGREEING TO INDEMNIFY, NOT TO SUE AND RELEASE FROM LIABILITY USA CYCLING, INC. (USAC), ITS ASSOCIATIONS . . . AND THEIR RESPECTIVE AGENTS, EMPLOYEES, VOLUNTEERS, MEMBERS, SPONSORS, PROMOTERS AND AFFILIATES (COLLECTIVELY “RELEASES”), AND THAT I AM GIVING UP SUBSTANTIAL LEGAL RIGHTS. THIS DOCUMENT IS A CONTRACT WITH LEGAL AND BINDING CONSEQUENCES. I HAVE READ IT CAREFULLY BEFORE SIGNING, AND I UNDERSTAND WHAT IT MEANS AND WHAT I AM AGREEING TO BY SIGNING.
In consideration of the issuance of a license to me by one or more of Releasees and being allowed to participate in a cycling event permitted or sanctioned by USA Cycling, . . . I hereby freely agree to and make the following contractual [*6] representations and agreements. I acknowledge that cycling is an inherently dangerous sport and fully realized the dangers of participating in a bicycle race, whether as a rider, coach, mechanic or otherwise, and FULLY ASSUME THE RISKS ASSOCIATED WITH SUCH PARTICIPATION INCLUDING, by way of example, and not limitation, the dangers of collision with . . . fixed or moving objects; the dangers arising from surface hazards, including pot holes . . . THE RELEASEES’ OWN NEGLIGENCE, the negligence of others . . . ; and the possibility of serious physical and/or mental trauma or injury, or death associated with cycling competition. . . . I HEREBY WAIVE, RELEASE, DISCHARGE, HOLD HARMLESS, AND PROMISE TO INDEMNIFY AND NOT TO SUE the Releasees and all sponsors, organizers, promoting organizations, property owners, law enforcement agencies, public entities, special districts and properties that are in any manner connected with a USA Cycling event, and their respective agents, officials, and employees through or by which the event will be held, (the foregoing are also collectively deemed to be Releasees), FROM ANY AND ALL RIGHTS AND CLAIMS INCLUDING CLAIMS ARISING FROM THE RELEASEES’ OWN NEGLIGENCE, [*7] which I have or may hereafter accrue to me, and from any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with a USA Cycling event, in which I may participate as a rider . . . . I agree it is my sole responsibility to be familiar with the course of a USA Cycling event, the Releasees’ rules, and any special regulations for a USA Cycling event and agree to comply with all such rules and regulations . . . . I understand and agree that situations may arise during a USA Cycling event which may be beyond the control of Releasees, and I must continually ride and otherwise participate so as to neither endanger myself nor others. I accept responsibility for . . . my conduct in connection with a USA Cycling event. . . .
I agree, for myself and my successors, that the above representations are contractually binding, and are not mere recitals, and that should I or my Successors assert a claim contrary to what I have agree to in this contract, the claiming party shall be liable for all expenses (including legal fees) incurred by Releasees in defending the claims
. . . .
Reproduced Record (R.R.) at 342a-343a [*8] (emphasis in original).
Thereafter, on July 28, 2005, specifically in order to participate in the Tour de ‘Toona, Scott skimmed then executed a “2005 USA Cycling, Inc. Standard Athlete’s Entry Blank and Release Form” (Event Release). R.R. 346a, 1369a. The Event Release provided, in pertinent part:
I ACKNOWLEDGE THAT BY SIGNING THIS DOCUMENT, I AM ASSUMING RISKS, AND AGREEING TO INDEMNIFY, NOT TO SUE AND RELEASE FROM LIABILITY USA CYCLING, INC. (USAC), ITS ASSOCIATIONS . . . AND THEIR RESPECTIVE AGENTS, EMPLOYEES, VOLUNTEERS, MEMBERS, SPONSORS, PROMOTERS AND AFFILIATES (COLLECTIVELY “RELEASEES”), AND THAT I AM GIVING UP SUBSTANTIAL LEGAL RIGHTS. THIS ENTRY BLANK AND RELEASE IS A CONTRACT WITH LEGAL AND BINDING CONSEQUENCES. I HAVE READ IT CAREFULLY BEFORE SIGNING, AND I UNDERSTAND WHAT IT MEANS AND WHAT I AM AGREEING TO BY SIGNING.
In consideration of the issuance of a license to me by one or more of Releasees or the acceptance of my application for entry in the above event, I hereby freely agree to and make the following contractual representations and agreements. I ACKNOWLEDGE THAT CYCLING IS AN INHERENTLY DANGEROUS SPORT AND FULLY REALIZE THE DANGERS OF PARTICIPATING IN A BICYCLE RACE, [*9] whether as a rider, coach, mechanic or otherwise, and FULLY ASSUME THE RISKS ASSOCIATED WITH SUCH PARTICIPATION INCLUDING, by way of example, and not limitation, the dangers of collision with . . . fixed or moving objects; the dangers arising from surface hazards, including pot holes . . . THE RELEASEES’ OWN NEGLIGENCE, the negligence of others . . . ; and the possibility of serious physical and/or mental trauma or injury, or death associated with cycling competition. . . . I HEREBY WAIVE, RELEASE, DISCHARGE, HOLD HARMLESS, AND PROMISE TO INDEMNIFY AND NOT TO SUE the Releasees and all sponsors, organizers and promoting organizations, property owners, law enforcement agencies, public entities, special districts and properties that are in any manner connected with this event, and their respective agents, officials, and employees through or by which the events will be held, (the foregoing are also collectively deemed to be Releasees), FROM ANY AND ALL RIGHTS AND CLAIMS INCLUDING CLAIMS ARISING FROM THE RELEASEES’ OWN NEGLIGENCE, which I have or may hereafter accrue to me, and from any and all damages which may be sustained by me directly or indirectly in connection with, or arising out [*10] of, my participation in or association with the event . . . I agree it is my sole responsibility to be familiar with the race course, the Releasees’ rules, and any special regulations for the event and agree to comply with all such rules and regulations. I understand and agree that situations may arise during the event which may be beyond the control of the Releasees, and I must continually ride and otherwise participate so as to neither endanger myself nor others. I accept responsibility for . . . my conduct in connection with a USA Cycling event. . . .
I agree, for myself and my successors, that the above representations are contractually binding, and are not mere recitals, and that should I or my successors assert a claim contrary to what I have agreed to in this contract, the claiming party shall be liable for the expenses (including legal fees) incurred by the releasees in defending the claims. . . .
R.R. at 346a (emphasis in original). Scott argues that these exculpatory releases are invalid and unenforceable as against public policy and, therefore, her claims should be allowed to proceed. ³
3 According to Black’s Law Dictionary 648 (9th ed. 2009), an exculpatory clause is a “provision [*11] relieving a party from liability resulting from a negligent or wrongful act.”
In order for an exculpatory clause in a release to be valid, “(1) the clause must not contravene public policy, (2) the contract must be between persons relating entirely to their own private affairs and (3) each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.” Vinikoor v. Pedal Pennsylvania, Inc., 974 A.2d 1233, 1238 (Pa. Cmwlth. 2009). Scott does not dispute the trial court’s conclusion that the subject releases meet the third requirement, i.e., they are not contracts of adhesion. Thus this Court need only determine whether the subject releases are contracts between persons relating to their private affairs and/or whether they contravene public policy.
The Pennsylvania Superior Court has held, “[c]ontracts against liability, although not favored by courts, violate public policy only when they involve a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” Seaton v. E. Windsor Speedway, Inc., 400 Pa. Super. 134, 582 A.2d 1380, 1382 (Pa. Super. 1990). [*12] Scott argues that the releases involved matters of interest to the public, since: ABC touted the Tour de ‘Toona as a “community-owned” event, in “partnership” with state and municipal governments; the race altered traffic patterns on public roads regulated by DOT and Huston Township, thereby affecting motorists; it invited members of the public to participate, to watch, and to volunteer; and, it was overseen by police and fire departments. Scott also argues that DOT’s permit “embodies” the state’s public policy to ensure that the roads were safe for the event, thus, the public had an interest in the event being conducted safely. However, there is no case law found by the trial court or this Court to support Scott’s contention that merely because the Tour de ‘Toona may have provided an ancillary benefit to the local community and used public resources, the exculpatory clauses in the releases were void as against public policy. Instead, courts in the Commonwealth have upheld releases similar to the one executed by Scott as not against public policy. See Vinikoor; Seaton; Valeo v. Pocono Int’l Raceway, Inc., 347 Pa. Super. 230, 500 A.2d 492 (Pa. Super. 1985). Specifically, in Vinikoor, this Court held that, [*13] “[t]here is a valid public policy to preclude recovery against self-inflicted injuries through known risks.” Vinikoor, 974 A.2d at 1240. Thus, the trial court did not err in finding that the subject releases do not contravene public policy.
In addition, the trial court properly held that the subject releases “are private agreements between an individual . . . and various entities,” and do not involve agreements between persons and their employers required as a condition of employment, or a public service, a public utility, a common carrier or a hospital or healthcare provider. Scott v. Altoona Bicycle Club, et al. (No. 2006 GN 4730, filed June 25, 2009), slip op. at 17. Scott was under no obligation to either apply for a license from the USAC or to register to compete in the Tour de ‘Toona. No case law was cited by Scott addressing whether releases like those at issue here are considered anything other than private agreements between private parties. Thus, the trial court did not err in finding that the subject releases involved private parties and their private affairs. Accordingly, because the subject releases do not contravene public policy, are between persons relating to their [*14] private affairs, and are not contracts of adhesion, they are valid.
Notwithstanding the above, “[e]ven if an exculpatory clause is determined to be valid, however, it will still be unenforceable unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” Vinikoor, 974 A.2d at 1238. In order to determine whether an exculpatory release is enforceable:
1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in case of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.
Id. (citing Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 471, 626 A.2d 98, 99 (1993)). “Under Pennsylvania law, written releases are interpreted in accordance with the rules of contract construction. . . . In determining the parties’ intent, [*15] a court must first look to the language of the release.” A.G. Cullen Constr., Inc. v. State Sys. of Higher Educ., 898 A.2d 1145, 1167 (Pa. Cmwlth. 2006) (citations omitted).
In this case, the Membership Release, which Scott reviewed and agreed to online, in its very title, indicates the clear intention that she must release from liability, indemnify and agree not to sue the parties designated therein. In the bodies of both releases Scott acknowledged she was “giving up substantial legal rights,” and she expressly agreed to “release from liability” “from any and all rights and claims,” and “not to sue” for “damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with a USA Cycling event,” or the Tour de ‘Toona. R.R. at 342a, 346a, 1369a. It is also clear that Appellees are specifically covered by the releases — USAC by name; ABC as sponsor, organizer and/or promoting organization; Bilotto as agent, official or employee of ABC; and, DOT and Huston Township, as property owners, law enforcement agencies, public entities, or special districts and properties that are in any manner connected with the event.
The language [*16] in these releases clearly and unambiguously reflects Appellees’ intention to be released by Scott from all liability, even for Appellees’ negligence, for injuries she may suffer during a USAC event generally, and the Tour de ‘Toona specifically. “Where . . . the language of the contract is clear and unambiguous, a court is required to give effect to that language.” Standard Venetian Blind Co. v. Am. Empire Ins. Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983). In addition, in the absence of fraud or a confidential relationship, the fact that Scott may have “skimmed” or “somewhat” read the subject releases, does not make them any less enforceable. Seaton; Standard Venetian Blind Co. Finally, in Vinikoor, this Court upheld as enforceable a substantially similar exculpatory release in favor of Pedal Pennsylvania, Inc. where Vinikoor read, understood and signed the agreement. ⁴
4 While the release in Vinikoor specifically stated that it was a “complete waiver,” the fact that that phrase does not appear in the releases executed by Scott does not render this Court’s reasoning in Vinikoor inapplicable here.
Scott argues that the Supreme Court, in Employers Liability Assurance Corporation v. Greenville Business Men’s Association, 423 Pa. 288, 224 A.2d 620 (1966), [*17] prohibits the grant of immunity based upon general language in a release, and the trial court herein violated that rule by holding that the general language, “from any and all rights and claims including claims arising from the releases’ own negligence,” included a waiver of gross negligence and recklessness despite the fact that neither word appears anywhere in the form. Scott Br. at 57. Scott argues that such language can “reasonably be interpreted to release only claims that arise from negligence and no more,” since “[t]here is no comma after ‘claims’ nor is there any ‘without limitation’ language as appears earlier.” Scott Br. at 57. Scott attempts to go beyond the plain meaning of the subject releases to support her position.
As properly noted by Appellees, the Pennsylvania courts have upheld as enforceable agreements containing the “any and all” language. See Rep. Ins. Co. v. Paul Davis Sys. of Pittsburgh S., Inc., 543 Pa. 186, 670 A.2d 614 (1995) (general release applicable to “all other persons” from “any and all other actions” of “whatsoever kind or nature” barred subsequent action by an insurer against a contractor); Buttermore v. Aliquippa Hosp., 522 Pa. 325, 561 A.2d 733 (1989) [*18] (“any and all other persons, associations and/or corporations, whether known or unknown” language in a general settlement release barred a subsequent claim against the hospital, despite the fact that it was not named in the release, nor contributed consideration toward settlement). In Vinikoor, where the release stated that Pedal Pennsylvania, Inc. was released “from all liability as a result of my participation in Pedal Pennsylvania, whether caused by negligence or otherwise,” was sufficient for this Court to find that Vinikoor, without qualification, waived his right to sue Pedal Pennsylvania, Inc. for injuries suffered as a result of his participation in a bicycle tour. Vinikoor, 974 A.2d at 1237.
In order to glean the parties’ intent, “[t]he language [of a release] must be viewed in the context of the entire document. Each part of a release must be given effect. . . . [T]erms in one section should not be interpreted to nullify or conflict with other terms.” A.G. Cullen Constr., Inc., 898 A.2d at 1167-68 (citations omitted). The subject releases read in their entirety cannot, as Scott argues, “reasonably be interpreted to release only claims that arise from negligence and no more.” [*19] Scott Br. at 57. In Zimmer v. Mitchell & Ness, 253 Pa. Super. 474, 385 A.2d 437 (Pa. Super. 1978), the Superior Court held that, “[a]lthough we must construe the contract strictly, we must also use common sense in interpreting this agreement. The mere fact that the word ‘negligence’ does not appear in the agreement is not fatal to appellee’s position.” Id., 385 A.2d at 439.
Supporting the aforementioned argument as to gross negligence is the Pennsylvania Supreme Court’s declaration that “there are no degrees of negligence in Pennsylvania” common law, only differing standards of care in certain circumstances. Ferrick Excavating & Grading Co. v. Senger Trucking Co., 506 Pa. 181, 191, 484 A.2d 744, 749 (1984) (describing differing standards of care applicable in bailment cases). Thus, since the releases specifically mention “negligence,” gross negligence is, by implication, included. This position is supported by the Pennsylvania Superior Court’s decision in Valeo, in which it affirmed the trial court’s grant of summary judgment in favor of a race car track where a race car driver executed a release “from all liability . . . whether caused by negligence of Releasees or otherwise,” on the basis that:
where [*20] the intention of the parties is spelled out with particularity and their agreement shows an unequivocally expressed purpose to release from liability, the law will give effect to that agreement. . . . The effect of the release was not avoided by an averred conclusion in the complaint that the negligent maintenance of the track amounted to gross negligence. The language of the exculpatory clause was broad enough to exclude liability for all degrees of negligence.
Valeo, 500 A.2d at 493 (emphasis added). We recognize that, in Ratti v. Wheeling Pittsburgh Steel Corp., 2000 PA Super 239, 758 A.2d 695 (Pa. Super. 2000), the Pennsylvania Superior Court held:
Since gross negligence is clearly more egregious than ordinary negligence, the rule of strict construction is even more appropriate in the case of indemnity for accidents caused by one’s gross negligence. In other words, this Court will not read the term ‘gross negligence’ into an indemnity provision in which it is not specifically manifested. If it had been the intention of the parties to cover liability for gross negligence, it requires no extraordinary skill in draftsmanship to so bind a contractor in words and phrases of absolute certainty as to require [*21] him to indemnify the owner for its gross negligence.
Id., 758 A.2d at 705. However, Ratti is distinguishable from this case in that Ratti concerned an indemnification agreement rather than an exculpatory release. Thus, based upon Zimmer and Valeo, this Court holds that gross negligence need not have been specifically mentioned in the subject releases in order for Appellees to be protected from Scott’s claims. ⁵ To support her claim that the subject releases do not waive Scott’s claims for recklessness against ABC, Bilotto and USAC, ⁶ Scott cites the Pennsylvania Superior Court’s decision in Tayar v. Camelback Ski Corp., Inc., 2008 PA Super 204, 957 A.2d 281 (Pa. Super. 2008), for the proposition that recklessness cannot be waived in an exculpatory contract by words of general import such as “any and all liability.” In Tayar, a snowtubing patron brought an action against Camelback Ski Corporation (Camelback) for injuries sustained in a collision when a Camelback employee permitted the patron to descend the slope before her path was clear. The trial court granted summary judgment in favor of Camelback and its employee on the basis of a release of liability executed by the patron. The Superior Court reversed. [*22] Scott claims that, in doing so, the Superior Court expressly rejected the notion that recklessness is waived in an exculpatory contract by words of general import. However, that case is clearly distinguishable from the present case. In Tayar, the focus was on the fact that Camelback “consciously marketed a service that purported to eliminate a known and typical risk of a recreational activity,” and the issue of whether Camelback’s employee’s actions were waived by the release. Id., 957 A.2d at 293. Ultimately, the Superior Court remanded the case, since there was insufficient evidence of record to determine if the defendants’ conduct was reckless or intentional and whether that was the cause of the patron’s injuries. Thus, Tayar has no bearing on the outcome of this case.
5 Scott’s amended complaint asserts claims against DOT and Huston Twp. for negligence and gross negligence since they own, operate, maintain and control the intersection at which Scott was injured. The issue of sovereign or governmental immunity afforded DOT and Huston Twp. was raised in Appellees’ motion for summary judgment, but was not addressed in the trial court’s opinion. Since it is clear that the subject releases [*23] relieve all Appellees, including DOT and Huston Twp., of liability for negligence and gross negligence, we do not address the issue of any sovereign or governmental immunity to which they may be entitled.
6 Scott has not asserted a claim for recklessness against either DOT or Huston Twp.
Based upon the foregoing, we hold that claims for gross negligence and recklessness need not have been specifically mentioned in the subject releases in order for Appellees to have been protected in this case. Since, in strictly construing the subject releases as against Appellees, this Court finds that the intention of the parties is stated with particularity therein, Appellees have met their burden of establishing that they are released from Scott’s claims. Moreover, since the exculpatory clauses in the releases have met the necessary requirements, they are valid and enforceable. ⁷
7 Our holding on this issue is in accordance with the Pennsylvania Supreme Court’s decision in Chepkevich v. Hidden Valley Resort, L.P., Pa. , A.2d , 2 A.3d 1174, 2010 Pa. LEXIS 1311 (No. 22 WAP 2007, filed June 21, 2010), which was decided after the instant case was briefed, and on the same day that it was argued before this Court. The Supreme [*24] Court declared, inter alia, that exculpatory releases for voluntary participation in non-essential recreational activities are not contracts of adhesion and, that the fact that such releases may not specifically define or illustrate the specific actions from which the released parties are immune does not render them invalid or unenforceable.
Finally, examining the record in the light most favorable to Scott, there are no genuine issues as to the material facts upon which this Court relies to hold that Appellees are entitled to judgment in their favor as a matter of law on the basis of the subject releases. The facts cited herein for the Court’s holding are undisputed.
Whether Appellees Are Entitled To Judgment On The Basis Of Scott’s Assumption of Risk:
Next, Scott argues that her claims are not barred by her assumption of risk because the assumption of risk doctrine is disfavored in the law, because she did not knowingly proceed in the face of an obvious danger or an inherent risk of competitive cycling, and because the trial court ignored evidence that Scott did not assume the risk that ABC would not correct a course that was inherently dangerous. Moreover, Scott argues that there are [*25] genuine issues of material fact with respect to her alleged assumption of risk.
Scott avers that the assumption of risk doctrine is “disfavored in the law,” since it has been “supplanted by comparative negligence.” Scott Br. at 40. However, in Wallis v. Southeastern Pennsylvania Transportation Authority, 723 A.2d 267 (Pa. Cmwlth. 1999), this Court addressed the place of assumption of risk as a defense in Pennsylvania law as follows:
In Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107 (1993) (plurality opinion), the Pennsylvania Supreme Court abolished assumption of the risk as an affirmative defense to be decided by a jury; rather, to the extent that an assumption of the risk analysis applies in a given case, the court must apply it as part of its duty analysis. The doctrine is to be applied only in cases involving an express assumption of risk, in cases brought under a strict liability theory, and in cases in which the doctrine is preserved by statute. Id. In Duquesne Light v. Woodland Hills School District, 700 A.2d 1038 (Pa. Cmwlth. 1997). . . this Court adopted the rationale of Howell as controlling precedent.
Id., 723 A.2d at 269-70 (footnote omitted). This Court, in Vinikoor, restated [*26] its position that assumption of risk is still viable for courts to consider in the three limited circumstances noted in Wallis.
“Under the doctrine of assumption of the risk, a defendant is relieved of its duty to protect a plaintiff from harm if the plaintiff voluntarily faces a known and obvious risk and is therefore considered to have assumed liability for his own injuries.” Kevan v. Manesiotis, 728 A.2d 1006, 1009 (Pa. Cmwlth. 1999). This case does not involve a claim of strict liability or a statutory exception, but does involve what is presented as an express assumption of risk.
An express assumption of the risk is where the plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for the plaintiff’s protection. Ordinarily such an agreement takes the form of a contract, which provides that the defendant is under no obligation to protect the plaintiff, and shall not be liable to him for the consequences of conduct which would otherwise be tortious.
Duquesne Light Co. v. Woodland Hills Sch. Dist., 700 A.2d 1038, 1054 (Pa. Cmwlth. 1997) (citations and quotation marks omitted).
Both of the subject releases read and signed by Scott expressly state, [*27] “I AM ASSUMING RISKS,” and Scott expressly acknowledged:
I acknowledge that cycling is an inherently dangerous sport and fully realize the dangers of participating in a bicycle race . . . as a rider . . . and FULLY ASSUME THE RISKS ASSOCIATED WITH SUCH PARTICIPATION INCLUDING, by way of example, and not limitation, the dangers of collision with . . . fixed or moving objects; the dangers arising from surface hazards . . . . THE RELEASEES’ OWN NEGLIGENCE, the negligence of others . . . and the possibility of serious physical . . . injury . . . associated with cycling competition.
R.R. at 342a, 346a. There is no doubt that, by signing the releases, Scott intended to assume any risks inherent in bicycle racing.
It is clear that Scott had experience with bicycle racing before the day of her accident. She testified that she had previously seen cyclists leave the road course. Prior to the Tour de ‘Toona, she understood that there are potential hazards on and off the racecourse. She has seen conditions off the road course that were not flat or even. She also acknowledged that it is easier to control a road bike on the paved road surface than off the paved road surface. She inspected the race [*28] course, including the intersection in question, before the day of the race. Finally, during the race, Scott deliberately steered her bicycle off the paved road and into the grass area where her accident occurred.
When a trial judge applies assumption of the risk as part of the duty analysis, the ‘court may determine that no duty exists only if reasonable minds could not disagree that the plaintiff deliberately and with the awareness of specific risks inherent in the activity nonetheless engaged in the activity that produced his injury.’
Wallis, 723 A.2d at 270. In this case, as in Vinikoor, it is clear that Scott knew of the general risk of riding bicycles, she was aware of specific risks like the one she encountered in the Tour de ‘Toona (i.e., uneven surface off the road course), and she voluntarily signed the releases acknowledging her awareness that riding could result in serious physical injury and she, nevertheless, chose to participate in the event.
Scott argues that she could not assume the risk that ABC knew that the intersection was dangerous and did nothing about it, and/or misled her by promoting the Tour de ‘Toona as the best race in the country, and the “safest possible.” [*29] Scott Br. at 45. Whether that is true, in Vinikoor, this Court held that even if the race coordinator took specific action to make the course safe and provided warnings of hazards, such “activities do not preclude application of the voluntary assumption of the risk/no duty rule with respect to the risk of falling from a bicycle or encountering an irregular surface.” Id., 974 A.2d at 1241. We hold, therefore, that reasonable minds could not disagree that Scott deliberately and with awareness assumed the risk of injuries for which she now seeks damages from Appellees.
Finally, examining the record in the light most favorable to Scott, there are no genuine issues as to the material facts upon which this Court relies to hold that Appellees are entitled to judgment in their favor as a matter of law on the basis of express assumption of risk. The facts cited herein for the Court’s holding are undisputed.
Because Appellees are entitled to judgment in their favor on the basis of the exculpatory releases and Scott’s express assumption of risk, the decision of the trial court is affirmed. ⁸
8 Since this Court held that by executing the subject releases and/or assuming the risk of her injuries, [*30] Scott waived all claims against Appellees, including those for recklessness and gross negligence, there is no reason for this Court to address the final issue of whether Scott presented sufficient evidence of recklessness or gross negligence.
JOHNNY J. BUTLER, Judge
ORDER
AND NOW, this 16th day of July, 2010, the June 24, 2009 order of the Court of Common Pleas of Blair County is affirmed.
JOHNNY J. BUTLER, Judge

Outdoor Retailer Annual Rugby Match is on.

Its fun to watch little M running around yelling!

The annual Outdoor Retailer ruby match is getting set up. This will be year three of the annual event where you can take out your SLC or OR frustration on fellow frustrated attendees! J

The Hookers & Grubbers are already starting the trash talking which is incomprehensible to most of you, unless rugby was a staple in your college diet.

If you want to play, “admission” is easy and cheap: As a visit Scrumbot.com, and purchase a kit (jersey, shorts, socks), and show up dressed to the 8’s (not quite the 9’s).

The game is scheduled for 7 p.m. on Aug. 5, the second day of Outdoor Retailer Summer Market 2011.
Note to spectators, if you have a week stomach, bring a blindfold or a big book, these gals and guys play hard and then run to the spectators to blow chunks. From watching two of these games, I’ve decided it is part of the game. I’m not sure how you get points for it, but as much of it that occurs it has to be worth something.
For more information watch SNEWS. To learn about past games (antics) see Hookers & Grubbers mix it up again at ORSM…come tired, leave sexy

What do you think? Leave a comment.

Comments are moderated Michael!

Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

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Athlete Contracts; as a manufacture do you need one?

You have a great product, and you want to get it out into the hands of some athletes. The athletes have been friends for years, and you’re not worried about them. Do you really need to have them sign a contract just to get free gear? Yes.

Real athletes, those people who are at the top of their game, that make their living showing your product to the world? Definitely Yes.

If you are just giving gear to an athlete and are not expecting anything in return except maybe some feedback, hand out the gear. You will probably ask them to post their experiences on social media so make sure you tell them about the FTC rules on the proper hashtags.  See Are you complying with the current FTC rules when you ask someone to tag you on a social network?

If you expect your gear to be on a podium or in photographs with wining athletes you need agreements with those athletes. If you are requiring feedback or exposure you need to make sure everyone understands the terms of the agreement. Everyone means the Internal Revenue Service, the athlete’s health and disability insurance company and any worker’s compensation insurance company, as well as the athlete.

Normally, these contracts specify how the athlete gets the gear and/or money for their work. The agreement may also cover when they will be paid more for wining or exposure This means your logo must be visible, not just on a blur in the background.

There are also several situations that you need in an agreement to protect yourself.

First you need to make sure the athlete knows they are responsible for any state, local or federal taxes due on the money or product you provide. Yes product. If the athlete is accepting product in excess of what is needed to do the job, there may be taxes due. If the taxes are not paid, the tax authority will go to the entity that did not withhold the appropriate taxes from the person who did not pay. That means you. Unless you can prove that the person was an independent contractor and was liable for their own taxes you may write a check. An agreement that sets forth those requirements is a good defense to any tax person knocking on your door.

Second is the athlete’s insurance company. I’ve commented several times that many of the current lawsuits are probably subrogation claims by insurance companies. See Canadian government suing Blackcomb Mountain for the health care costs of an injured snowboarder. A subrogation clause is found in every insurance contract. The subrogation clause allows the insurance company to sue, in the name of the insured, the person or persons that caused the injuries to the insurance company’s client. Meaning the lawsuit will be Your Athlete against You. Even though the athlete may not want to sue you.

If the insurance company paid for a claim for you, that gives them the right, contractually to make you sue your best friend.

In this case, the insurance company may claim one of two things: (1) the athlete was working for you and therefore, is it is a worker’s compensation claim which they are not liable for; or (2) because you gave the injured athlete the equipment that “failed” you are liable. Again your agreement needs to make sure that everyone (meaning the athlete, his or her family and their insurance companies) knows the athlete was not an employee, and your agreement should contain a release.

You don’t have to inform everyone immediately, just when the lawsuit arises that you can’t be sued.

The biggest threat is any worker’s compensation insurance carrier. If someone reports on any insurance form that the athlete was working at the time of his injury or if the injured athlete is attempting to get more money by claiming a worker’s compensation injury, the worker’s compensation insurer will look for someone to reimburse them.

One clause that I put in all athlete contracts is a release. I want the athlete and their insurance carriers to know that the athlete can’t sue the manufacture. A release signed by the athlete is effective as a defense against the insurance company with a subrogation claim.

Here again three reasons why having proper paperwork will eliminate problems. However, there are other reasons to have a contract. It will make it easy for you and the athlete to know how much money is being paid for different photo placements or copy in magazines. It lets everyone know what the athlete can and cannot do. It allows you to dodge the issues if the athlete shows up on the cover of high times rather than the podium.

Get a contract, it will make everyone know where they are going and why, as well as keep you and your company out of a litigation nightmare.

For additional articles on this subject see: Do you have contracts with all of your athletes? Manufactures who provide more than swag to athletes maybe sued without a written agreement and Athlete Contracts; as a manufacture do you need one?

What do you think? Leave a comment.

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NEW American Alpine Club Benefit Package

New and Expanded Member Benefits from the American Alpine Club
When the Club asked members and climbers what they wanted most from the AAC, tangible membership benefits topped the list, so we have been hard at work negotiating new and better benefits for you. Check out the list below for all the benefits your membership dollars provide as of May 2011.

• Improved Rescue Benefits: New $5,000 domestic INSURANCE added to current $5,000 worldwide rescue service
• New Insurance Options: Health, Accident, Life, Trip & Travel
• New AAC Clubhouse in Kathmandu ($15/night)
• New Lodging Discounts
• New Gym Discounts
• New Gear Discounts
• New Guide Service Discounts
• New AAC Cornerstone Grant ($25,000/year) for crag infrastructure
• $8,000 Added to Spitzer Cutting Edge Grant (now $20,000/year)
• $3,000 Added to Mountain Fellowship Grant (now $15,000/year)
• New Online: Post your trip reports on americanalpineclub.org
• New Online: Connect locally through interactive section websites
• New Online: Digitally update your library book mailing address
• New Online: Entire library collection now searchable
• More Local Programs: Events, conservation, mentorship, advocacy
• More Local Support: Full-time Regional Coordinators hired across the U.S.

Saturday is International Migratory Bird Day

We are losing birds too fast.

When I was young I remember thinking that the birds made a lot of racket. Now days, I stop to listen when I hear a bird because their sounds are so few.
Tell everyone to celebrate International Migratory Bird Day

What do you think? Leave a comment.

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Galloway v. State of Iowa, 790 N.W.2d 252; 2010 Iowa Sup. LEXIS 109

To Read an Analysis of this decision see

Iowa does not allow a parent to sign away a minor’s right to sue.

Galloway v. State of Iowa, 790 N.W.2d 252; 2010 Iowa Sup. LEXIS 109

Taneia Galloway, Appellant, vs. State of Iowa, Appellee.

No. 08-0776

SUPREME COURT OF IOWA

790 N.W.2d 252; 2010 Iowa Sup. LEXIS 109

November 5, 2010, Filed

PRIOR HISTORY: [**1]

Appeal from the Iowa District Court for Black Hawk County, George Stigler, Judge. The plaintiff appeals from a summary judgment ruling enforcing a parent’s preinjury releases of her minor child’s personal injury claim.

DISPOSITION: REVERSED AND REMANDED.

COUNSEL: Ryan T. Beattie of Beattie Law Firm, P.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Joanne Moeller, Assistant Attorney General, for appellee.

JUDGES: HECHT, Justice. All justices concur except, Cady, J., and Ternus, C.J., who dissent.

OPINION BY: HECHT

OPINION

[*253] HECHT, Justice.

A parent signed release forms waiving her minor child’s personal injury claims as a condition of the child’s participation in an educational field trip. This action was filed against the State after the child was injured during the trip. The district court granted the State’s motion for summary judgment, concluding the releases signed by the parent resulted in an enforceable waiver of the child’s personal injury claim. On appeal from the summary judgment ruling, we conclude the releases violate public policy and are therefore unenforceable.

I. Background Facts and Proceedings.

In July of 2005, fourteen-year-old Taneia Galloway attended a field trip to Milwaukee, Wisconsin, with Upward [**2] Bound, a youth outreach program organized by the University of Northern Iowa and the State of Iowa. On the field trip, Galloway was injured when she was struck by a car as she attempted to cross the street.

Before Galloway went on the field trip, her mother signed two documents entitled “Field Trip Permission Form” and “Release and Medical Authorization.” The first document read:

Classic Upward Bound Summer Residential Program Field Trip Permission Form

Dear Parent(s)/Guardian(s):

Each summer the participants of the Classic Upward Bound Program attend field trips locally and out-of-town. This form must be completed in order for your son/daughter to participate in said events.

As the parent/guardian of Taneia Galloway, I hereby give my permission for him/her to participate in ALL field trips sponsored by the University of Northern Iowa Classic Upward Bound Program during the Summer Residential and the Academic Year Program. Taneia Galloway understands he/she is to follow all rules of the Classic Upward Bound Program while participating in these field trips.

Furthermore, I will not hold the University of Northern Iowa or any of its employees or agents responsible for any accidents, losses, [**3] damages or injuries resulting from the son/daughter’s participation in any or all the field trips. I also release the Classic Upward Bound Program, the University of Northern Iowa, and its employees and agents from all liabilities.

If the student is living with both parents/guardians, both parents/ guardians must sign this form.

Galloway’s mother signed and dated the form on June 13, 2005. She also signed another form which read as follows.

RELEASE AND MEDICAL AUTHORIZATION

University of Northern Iowa Classic Upward Bound — Dates: June 1, 2005 — May 30, 2006

Read Carefully —

This document is a release and authorizes medical treatment.

Please return all copies of this form to the program staff. Registration is not considered complete until this completed form is filed with the University of Northern Iowa Classic Upward Bound Program.

The student will not be allowed to participate in the Classic Upward Bound Program if this information if not provided. This information is not routinely [*254] provided to individuals or organizations outside the University, except as provided by law.

In consideration of the University of Northern Iowa granting the student permission to participate in the Classic Upward [**4] Bound Program, I hereby assume all risks of her/his injury (including death) that may result from any program activity. As parent/guardian I do hereby release and agree to indemnify, defend and hold harmless the University of Northern Iowa, State Board of Regents, State of Iowa, Classic Upward Bound and its officers, employees, agents and all participants in the program from and against all liability including claims and suits of law or in equity for injury (fatal or otherwise) which may result from any negligence and/or the student taking part in program activities.

I certify that within the past year the student has had a physical examination and that she/he is physically able to participate in all Upward Bound activities.

In the event of injury or illness, I hereby give my consent for medical treatment, and permission to program staff for supervising and performing, as deemed necessary by staff, on-site first aid for minor injuries, and for a licensed physician to hospitalize and secure proper treatment (including injections, anesthesia, surgery, or other reasonable and necessary procedures) for the student. I agree to assume all cost related to any such treatment. I also authorize [**5] the disclosure of medical information to my insurance company for the purpose of this claim. I understand each student must provide her/his own medical insurance.

I understand that I am responsible for any medical or other charges related to the student’s attendance at the University of Northern Iowa Classic Upward Bound Program.

Galloway, through her mother as next friend, ¹ filed suit against various parties, including the State of Iowa. The State moved for summary judgment, contending the releases signed by Galloway’s mother waived any claims against it for negligence. The district court concluded the releases constituted a valid waiver of Galloway’s claims and granted summary judgment. Galloway appeals. ²

1 Taneia Galloway has since reached the age of majority and has been substituted as plaintiff.

2 The district court denied the summary judgment motions of the other defendants, but Galloway has since dismissed her claims against the remaining defendants.

II. Scope of Review.

[HN1] Our review is for correction of errors at law. Iowa R. App. P. 6.907. [HN2] When reviewing a grant of summary judgment we must determine if “the moving party has demonstrated the absence of any genuine issue of material [**6] fact and is entitled to judgment as a matter of law.” Huber v. Hovey, 501 N.W.2d 53, 55 (Iowa 1993). [HN3] “Summary judgment is proper if the only issue is the legal consequences flowing from undisputed facts.” Id. [HN4] Determining the legal effects of a contract is a matter of law to be resolved by the court. Id. at 55-56.

III. Discussion.

Galloway makes three arguments on appeal that we should conclude the releases signed by her mother are void and unenforceable. First, she asserts we should follow a majority of other state courts that have concluded it is against public policy [*255] for a parent to waive liability for a child’s injury before the injury occurs. In the alternative, she argues an application of the factors enunciated in Tunkl v. Regents of University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441 (Cal. 1963), demonstrates it is against public policy to enforce releases signed by a parent as a condition of the child’s participation in an educational activity. Her final contention is that these particular releases are insufficient to waive the State’s liability because the intent to waive liability is not clearly expressed.

Galloway’s primary argument is that public policy considerations should lead this [**7] court to conclude preinjury releases executed by parents as a condition of their children’s participation in educational activities are incompatible with public policy and therefore unenforceable. In particular, she contends public policy should preclude enforcement of releases executed by parents because parents are ill-equipped to assess in advance the nature of risks of injury faced by children while they are participating in activities at remote locations under the supervision of others and because parents are uninformed of the nature and extent of the gravity of the injuries to which their children may be exposed when the releases are executed.

The State, however, argues that public policy weighs in favor of enforcing preinjury releases signed by parents. The State contends that all of the arguments supporting the enforcement of preinjury releases executed by adults waiving liability for their own injuries apply with equal force to releases given by parents on behalf of their minor children. The State further contends the public policy of this state requires courts to give deference to parents’ child-rearing choices, including the choice to release third parties in advance for [**8] negligent injury to children.

We begin with an acknowledgment of the challenging nature of identifying which societal values are properly included within the purview of “public policy.” In our efforts to characterize the imprecise boundaries of the concept, we have made reference to the broad concepts of “public good,” In re Estate of Barnes, 256 Iowa 1043, 1051, 128 N.W.2d 188, 192 (1964), and “‘established interest[s] of society.'” Walker v. Am. Family Mut. Ins. Co., 340 N.W.2d 599, 601 (Iowa 1983) (quoting Wunschel Law Firm, P.C. v. Clabaugh, 291 N.W.2d 331, 335 (Iowa 1980)). However, despite the difficulty of characterizing the exact elements of the public interest, we have considered and weighed public policy concerns when deciding important legal issues. For example, such considerations were a critical aspect of our analysis when we abolished the doctrine of immunity for charitable institutions. Haynes v. Presbyterian Hosp. Ass’n, 241 Iowa 1269, 1274, 45 N.W.2d 151, 154 (1950) (weighing and ultimately rejecting public policy justifications for the immunity doctrine).

We have also confronted public policy considerations in the context of litigation between family members. Our understanding [**9] of the public interest prompted this court to exercise its authority to abrogate the doctrine of interspousal immunity. Shook v. Crabb, 281 N.W.2d 616, 620 (Iowa 1979) (relying on the fundamental public policy that courts should afford redress for civil wrongs and rejecting the proposition that the doctrine of interspousal immunity involved determinations of public policy most appropriately made by the legislature). We again carefully considered public policy factors in the family context when we abolished the doctrine of absolute parental immunity and recognized a remedy for children injured by the negligent acts of a parent. Turner v. Turner, 304 N.W.2d 786, 787-88 [*256] (Iowa 1981) (rejecting the argument that “domestic government” and “parental discipline and control” are matters of public policy justifying retention of parental immunity). In this case, we are called upon to decide whether public policy considerations should lead us to invalidate preinjury releases given by a parent purporting to waive her minor child’s claim for personal injuries.

[HN5] As the freedom to contract weighs in the balance when public policy grounds are asserted against the enforcement of a contract, courts must [**10] be attentive to prudential considerations and exercise caution. Tschirgi v. Merchs. Nat’l Bank of Cedar Rapids, 253 Iowa 682, 690, 113 N.W.2d 226, 231 (1962). These considerations have led this court to repeatedly hold that “contracts exempting a party from its own negligence are enforceable, and are not contrary to public policy.” Huber, 501 N.W.2d at 55. Notwithstanding this well-established general rule, Galloway urges us to join the majority of state courts who have examined the issue and have concluded public policy precludes enforcement of a parent’s preinjury waiver of her child’s cause of action for injuries caused by negligence. See Apicella v. Valley Forge Military Acad. & Junior Coll., 630 F. Supp. 20, 24 (E.D. Penn. 1985); Fedor v. Mauwehu Council, 21 Conn. Supp. 38, 143 A.2d 466, 468 (Conn. Super. Ct. 1958); Kirton v. Fields, 997 So. 2d 349, 358 (Fla. 2008); Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 634 N.E.2d 411, 414, 199 Ill. Dec. 572 (Ill. App. Ct. 1994); Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381, 386 (N.J. 2006); Fitzgerald v. Newark Morning Ledger Co., 111 N.J. Super. 104, 267 A.2d 557, 558 (N.J. Super. Ct. Law Div. 1970); Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242, 245 (Tenn. Ct. App. 1990); Munoz v. II Jaz Inc., 863 S.W.2d 207, 209-10 (Tex. App. 1993); [**11] Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, 1066 (Utah 2001); Scott ex rel. Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 834 P.2d 6, 10-11 (Wash. 1992).

The State responds that parents’ preinjury releases of their children’s personal injury claims are entirely consistent with legal traditions and public policy giving deference to parents’ decisions affecting the control of their children and their children’s affairs. To be sure, we have noted that [HN6] “a parent’s ‘interest in the care, custody, and control of [his] children’ is ‘”perhaps the oldest of the fundamental liberty interests recognized by”‘ the United States Supreme Court.” Lamberts v. Lillig, 670 N.W.2d 129, 132 (Iowa 2003) (alteration in original) (quoting Santi v. Santi, 633 N.W.2d 312, 317 (Iowa 2001)). Yet, the deference and respect for parents’ decisions affecting their children’s property interests is restricted to some extent by the public’s interest in the best interests of children. For example, this court has determined that the law will not permit a parent to compromise her child’s financial security by waiving child support payments from the other parent in exchange for relinquishment of visitation rights. Anthony v. Anthony, 204 N.W.2d 829, 833 (Iowa 1973). [**12] We concluded in Anthony that an agreement to waive child support under such circumstances “makes the child’s best interest subservient to parental self interest.” Id. at 834. Consistent with the policy considerations noted by this court in Anthony, a modification of a child support order “is void unless approved by the court . . . and entered as an order of the court.” Iowa Code § 598.21C(3) (2009).

Parents’ authority to make decisions affecting their children’s affairs is limited in other contexts as well. If a conservator for a minor child has not been appointed, a parent’s authority to receive money or other property for his or her [*257] child under the Iowa Uniform Transfers to Minors Act is limited to an aggregate value of $ 25,000. Iowa Code § 633.574; see also Iowa Code § 565B.7(3) (stating if a custodian has not been nominated, or all persons nominated to serve as custodians are unable, unwilling or ineligible to serve, a transfer may be made to an adult member of the minor’s family unless the property exceeds $ 25,000 in value). Generally, [HN7] a parent has no right, in the absence of authorization from a court, to release or compromise causes of action belonging to a minor. 59 Am. Jur. 2d, Parent and Child § 44, [**13] at 212 (2002). This general rule is followed in this jurisdiction, where a parent serving as her child’s conservator adjusts, arbitrates, or compromises claims in favor of or against the ward with approval of the court. Iowa Code § 633.647(5).

These limitations on parents’ authority to make legally enforceable transactions affecting the property and financial interests of their minor children are derived from [HN8] a well-established public policy that children must be accorded a measure of protection against improvident decisions of their parents. We conclude [HN9] the same public policy demands minor children be protected from forfeiture of their personal injury claims by parents’ execution of preinjury releases. By signing a preinjury waiver, a parent purports to agree in advance to bear the financial burden of providing for her child in the event the child is injured by a tortfeasor’s negligence. Sometimes parents are not willing or able to perform such commitments after an injury occurs. If parents fail to provide for the needs of their injured children, and the preinjury waiver in favor of the tortfeasor is enforced, financial demands may be made on the public fisc to cover the cost of care.

Beyond [**14] the public’s pure economic interest in protecting children against parents’ improvident decisions waiving their children’s causes of action before injuries occur, another compelling practical reason weighs in favor of protecting children from the harsh consequences of preinjury releases. An adult’s preinjury release of his claim for his own personal injuries will be enforced even if the releasing party did not read the document before signing. “It is well settled that failure to read a contract before signing it will not invalidate the contract. Absent fraud or mistake, ignorance of a written contract’s contents will not negate its effect.” Huber, 501 N.W.2d at 55 (citation omitted) (holding that an adult’s preinjury release was valid even though he did not read the document). While this court has found valid policy reasons supporting the rule allowing the enforcement of releases against adults who voluntarily, and in some cases foolishly, waive their own personal injury claims in advance of injury, we believe the strong public policy favoring the protection of vulnerable minor children demands a different rule here.

As the Washington Supreme Court has noted, if a parent lacks authority [**15] without court approval to compromise and settle her minor child’s personal injury claim after an injury has occurred, “it makes little, if any, sense to conclude a parent has the authority to release a child’s cause of action prior to an injury.” Scott, 834 P.2d at 11-12; accord Hojnowski, 901 A.2d at 387 (noting “children deserve as much protection from the improvident compromise of their rights before an injury occurs as [a rule requiring court approval of settlements of minor children’s claims] affords them after the injury”); Hawkins, 37 P.3d at 1066.