Indiana decision upholds release signed by mother for claims of an injured daughter for the inherent risks of softball. However, language of the decision may apply to well written releases to stop all claims for negligence.Posted: March 31, 2014
Decision appears to add Indiana to the list of states were a parent can sign away a minor’s right to sue for injuries.
Wabash County Young Men’s Christian Association, Inc. v. Thompson, 2012 Ind. App. LEXIS 428
Date of the Decision: August 31, 2012
Plaintiff: Wabash County Young Men’s Christian Association, Inc. f/k/a Wabash Community Service, Appellant-Defendant
Defendant: Taylor M. Thompson, a minor, by next friends, Brian Thompson and Charlene Thompson
Plaintiff (Defendant on Appeal) Claims: negligent and violated its duty to protect Taylor by its failure to inspect, warn, and implement preventive measures designed to eliminate or reduce dangers posed by the condition of the second base “such that it was fixed as a rigid obstacle for participants to encounter while sliding into the base and, thereby, posing a clear safety hazard
Defendant Defenses: Release
Holding: Release signed by the mother of the injured plaintiff (defendant on appeal) barred claims for the inherent risks of playing softball
Again, the plaintiff on appeal was the defendant in the trial court. The defendant at the trial court level filed a motion to dismiss. The motion was denied, and the defendant appealed that decision. Because of that timeline, the defendant became the plaintiff on appeal. Because of the confusion, I’ll just refer to the parties by their names: YMCA and Thompson.
The mother of Thompson, 17 years old at the time of her injury, signed a release to allow her daughter to play softball. The release was quite bad. It did not contain solid language, the word release, or explain any risks except the inherent risks of softball. The trial court rejected the YMCA’s argument and denied its motion for summary judgment based on the release.
The YMCA appealed the decision to the Indiana Appellate Court which reversed the decision.
Of note and of interest, Indian defines negligence in three steps, not the normal four steps as defined by the appellate court in this case.
In order to prevail on a claim of negligence, a plaintiff is required to prove:
(1) a duty owed by the defendant to the plaintiff;
(2) a breach of that duty by the defendant; and
(3) an injury to the plaintiff proximately caused by the breach.”
Basically, Indiana combines the majority third and fourth step into Indiana’s third step to define the requirements to prove negligence.
Summary of the case
Thompson first argued that an Indiana statute required any release for a minor to be approved by the court before it became effective. Many states require court approval of the settlement of the claims of minors.
The court quickly dismissed this argument because the statute in question was part of the probate law of Indiana and only dealt with post injury claims. Thompson did not raise any other arguments against the release so the court declared the release valid.
The court then went through the requirements for a valid release under Indiana’s law.
It is well established in Indiana that exculpatory agreements are not against public policy. “Generally, parties are permitted to agree that a party owes no obligation of care for the benefit of another, and thus, shall not be liable for consequences that would otherwise be considered negligent.” However, this court has held that an exculpatory clause will not act to absolve a party from liability unless it “‘specifically and explicitly refer[s] to the negligence of the party seeking release from liability.'” An exculpatory clause may be found sufficiently specific and explicit on the issue of negligence even in the absence of the word itself. Furthermore, an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity.
Of greater note was this statement from the court. “The requirement of specificity is only necessary when the risk of harm is a latent danger, i.e. the defendant’s own negligence.”
This may lead you to believe, and I believe properly that a properly written release would top a minor’s claim for negligence under Indiana Law.
The court concluded the release signed by the mother did not release the YMCA for all negligent acts because it was written so poorly. However, it will release the YMCA for what was stated in the release, the inherent risks of softball.
The court then reviewed whether sliding into a base was an inherent risk of softball.
Sliding into second base, notwithstanding its rigidity, is an activity inherent in the nature of playing baseball or softball and we conclude that Taylor’s injury was derived from a risk inherent in the nature of the activity.
So Now What?
It appears that Indiana will allow a parent to sign away a minor’s right to sue. A well-written release, including the magic word negligence, which identifies the risks other than the inherent risks, would stop a claim for negligence.
A well-written release would have eliminated half of this decision, maybe even the appeal. If the proper language, the magic word negligence and a broader definition of the risks were in the release, this case would have been decided faster and with less worthy.
What do you think? Leave a comment.
Copyright 2014 Recreation Law (720) Edit Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Mobile Site: http://m.recreation-law.com
By Recreation Law Recemail@example.comJames H. Moss #Authorrank
<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Minor, Parent, Release, Negligence, Softball, Sliding, Base, Inherent Risk,
Travel/Pass/Lesson Discounts –