Is there a duty to notify parents when an investigation is being conducted by the state to protect campers?
Posted: February 27, 2012 Filed under: Florida, Jurisdiction and Venue (Forum Selection), Minors, Youth, Children, Summer Camp | Tags: Florida, Jurisdiction, Long-Arm Jurisdiction, Motion (legal), North Carolina, Parental Responsibility, summer camp, Youth Camp Leave a commentCamp Illahee Investors, Inc., v. Blackman, 870 So. 2d 80; 2003 Fla. App. LEXIS 17549; 28 Fla. L. Weekly D 2672
Parents claim the camp was negligent in not informing them the state department of social services was going to or had interviewed their kids.
The problem is the case does not answer the question. This again, is a jurisdiction and venue motion that was appealed. The defendant camp was located in North Carolina. The plaintiffs were Florida’s residents. The only contact the camp had with Florida was 22% of its campers came from Florida, and one of the owners would spend a week in Florida every year drumming up business for the next summer.
The initial allegations giving rise to the litigation are very interesting. The plaintiff’s claim, the camp and the owners were negligent because the:
…Defendants had a duty, after being informed that the North Carolina County Department of Social Services desired to interview the Plaintiffs’ minor children, to notify the Plaintiffs of the fact that the minor children were to be interviewed by the North Carolina County Department of Social Services about possible child abuse….
There was a second allegation that a junior counselor had injured one of the plaintiff’s when he stepped on her feet. (Where they dancing?) This claim was not resolved in this appeal either.
Summary of the case
The plaintiff’s sued in Florida, and the defendants moved to dismiss. The trial court did not dismiss for lack of jurisdiction, and the defendants appealed. The defendants argued that they were:
…not subject to the jurisdiction of a Florida court and, even if jurisdiction existed in Florida, that North Carolina was an adequate alternative forum. Camp Illahee further argued that it was immune from suit under North Carolina law and that Florida’s impact rule required dismissal.
To support their argument the defendant must show the facts that prove their allegations. That is usually done by affidavits of the defendants and possibly others to prove the issue, or really, the lack of contact with the state.
Camp Illahee is a North Carolina corporation; the summer camp is located in North Carolina; Camp Illahee has no offices in Florida; it has no employees in Florida, although some of the employees who work at the camp during the summer are from Florida; Camp Illahee does no advertising in Florida by newspapers, radio, or television, but it has a one and one-half page posting on its internet website advising of “fall reunion and video shows.”
The court must then look at the State Long Arm Statute to determine if the facts make the defendant subject to the jurisdiction of the court. Under Florida’s law that analysis is:
…whether (1) there are sufficient jurisdictional facts to bring the action within the purview of the long-arm statute; and (2) the nonresident defendant involved has sufficient minimum contacts with Florida to satisfy constitutional due process requirements.
The Florida Long Arm Statute sets forth the minimum requirements to establish jurisdiction over out of state parties.
Section 48.193(1)(a)
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.
Section 48.193(2):
A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.
The court then applies the information presented by the parties to the requirements of the statutes to see if the defendant has the necessary minimum contacts with the state to be sued in that state and subject to the laws of that state.
So Now What?
The trend from the courts is to allow you to be brought into distant states and their judicial system. This case is a rarity. This is another example of where the agreement between the camp and the parents or any parties to any outdoor recreation, should agree in advance to where any litigation will be developed.
As far as notifying parents of an interview by social services for possible child abuse, I think I would always lean towards notifying the parents. In fact, I think I would notify the parents immediately. A parent must believe that their child is safe. Whether the child is safe is put into question, if social services is investigating your camp.
This may be a PR nightmare or disaster for any camp or program dealing with minors. You will need to make sure you bring in PR professionals and probably your attorney if this situation arises.
You should also set up a program and working relationship where anyone can come and talk to you about problems. Hopefully, before social services had been called, you are on top of the issue and have dealt with it.
What do you think? Leave a comment.
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Arizona limited right for parent to waive child’s right to sue
Posted: February 17, 2012 Filed under: Arizona, Minors, Youth, Children | Tags: Animal, Arizona, Arizona State University, Equine, health, Horse, Minor, Parental Responsibility, Parental Rights, Release 1 Comment
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TITLE 12. COURTS AND CIVIL PROCEEDINGS
CHAPTER 5. LIMITATIONS OF ACTIONS
ARTICLE 3. PERSONAL ACTIONS
Go to the Arizona Code Archive Directory
A.R.S. § 12-553 (2011)
§ 12-553. Limited liability of equine owners and owners of equine facilities; exception; definitions
A. An equine owner or an agent of an equine owner who regardless of consideration allows another person to take control of an equine is not liable for an injury to or the death of the person if:
1. The person has taken control of the equine from the owner or agent when the injury or death occurs.
2. The person or the parent or legal guardian of the person if the person is under eighteen years of age has signed a release before taking control of the equine.
3. The owner or agent has properly installed suitable tack or equipment or the person has personally tacked the equine with tack the person owned, leased or borrowed. If the person has personally tacked the equine, the person assumes full responsibility for the suitability, installation and condition of the tack.
4. The owner or agent assigns the person to a suitable equine based on a reasonable interpretation of the person’s representation of his skills, health and experience with and knowledge of equines.
B. Subsection A does not apply to an equine owner or agent of the equine owner who is grossly negligent or commits wilful, wanton or intentional acts or omissions.
C. An owner, lessor or agent of any riding stable, rodeo ground, training or boarding stable or other private property that is used by a rider or handler of an equine with or without the owner’s permission is not liable for injury to or death of the equine or the rider or handler.
D. Subsection C does not apply to an owner, lessor or agent of any riding stable, rodeo ground, training or boarding stable or other private property that is used by a rider or handler of an equine if either of the following applies:
1. The owner, lessor or agent knows or should know that a hazardous condition exists and the owner, lessor or agent fails to disclose the hazardous condition to a rider or handler of an equine.
2. The owner, lessor or agent is grossly negligent or commits wilful, wanton or intentional acts or omissions.
E. As used in this section:
1. “Equine” means a horse, pony, mule, donkey or ass.
2. “Release” means a document that a person signs before taking control of an equine from the owner or owner’s agent and that acknowledges that the person is aware of the inherent risks associated with equine activities, is willing and able to accept full responsibility for his own safety and welfare and releases the equine owner or agent from liability unless the equine owner or agent is grossly negligent or commits wilful, wanton or intentional acts or omissions.
HISTORY: Last year in which legislation affected this section: 1998
NOTES:
Premises Liability
SCOPE OF IMMUNITY.
This section does not shield stable owners from claims for negligent supervision, which do not involve horseback riding or activities directly relating thereto. Bothell v. Two Point Acres, Inc., 192 Ariz. 313, 965 P.2d 47 (Ct. App. 1998).
Grant of summary judgment in favor of the riding stable operator was proper where the document that the rider signed contained sufficient information to have been considered a release; further, this section does not completely deprive injured equine riders of a remedy and thus it does not violate the anti-abrogation clause, Ariz. Const. art. 18, § 6. Lindsay v. Cave Creek Outfitters, L.L.C., 207 Ariz. 487, 88 P.3d 557, 2003 Ariz. App. LEXIS 162 (Ct. App. 2003).
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Maine follows the majority and does not allow a parent to sign away a minor’s right to sue.
Posted: August 15, 2011 Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: Adventure travel, American Ski Company, Children, JimMoss, MAINE, Minor, Outdoor recreation, Parental Responsibility, Parental Rights, Rock climbing, Ski Resort, United States Leave a commentRice, Et Als, vs. American Skiing Company, Et Als, 2000 Me. Super. LEXIS 90
However the court held out the possibility that a
properly written indemnification clause may
be upheld.
In Rice et all the plaintiff was a nine year old boy skiing at Sunday River Ski Area. Sunday River Skiway Corporation was owned by the now defunct
Image via Wikipedia
American Ski Company at the time. The mother of the plaintiff signed the plaintiff up for an all-day ski lesson. While doing so she signed a “Acknowledgement &; Acceptance of Risks & Liability Release” (Ski Enrollment Form)” The form stated the risks and released the defendant of liability for negligence. The form also contained an indemnification provisions which stated the parents would indemnify the ski area for any losses of the minor.
During the afternoon instruction the plaintiff fell. The class stopped and waited for him to catch up. The plaintiff lost control and skied into the tree suffering injuries. The plaintiff sued for negligent supervision. The defendants claimed the defenses of the Maine Skiers’ and Tramway Passengers’ Responsibilities Act, 32 M.R.S.A. § 15217 (Supp. 1999) and the release signed by the mother.
The court quickly found the Maine Ski Act did not stop the lawsuit. The Maine Ski Act allows a suit for “does not prevent the maintenance of an action against the ski area operator for the negligent operation of the ski area”. The court found that negligent supervision “clearly” falls within the Maine Ski Acts “negligent operation” exclusion.
The court then looked at the release and struck the normal cords discussing releases. The court looks with disfavor on releases, releases must be strictly construed, and they must spell out with greatest particularity the intention of the parties.
After reviewing Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 696 N.E.2d 201 (Ohio 1998), the court held that Zivich only applied to non-profit organizations and in one-half of a sentence dismissed the issue that a parent is constitutionally allowed to sign a release for a child. The court then looked at prior law in Maine and held that a parent could not sign away a minor’s right to sue in Maine.
The court then looked at the mother’s claim for lost wages. The mother’s claim is derivative of the son’s claims. That means that if the son’s claim does not prevail then the mother’s claim does not stand. Because there were no defenses to the son’s claim then the mother’s claim could go forward.
Whether a parent can recover for their own losses when a child is negligently injured varies from state to state.
The final defense reviewed by the court was the indemnification language in the release. Maine, like all other states disfavors indemnification clauses against a defendant’s own negligence. The court found that this clause was not sufficient to state a defense under Maine law. However the court did not deny indemnifications claims absolutely. A release or indemnification agreement written with the guidelines of the court may be upheld.
So? Summary of the case
Maine fell in with the majority of the states holding that a parent could not sign away a minor’s right to sue. Nothing knew there. However there were several other defenses that were not raised or maybe were raised at later times.
The mother enrolled the plaintiff in a level III class. That required the plaintiff to have experience and be able to “form a wedge, to be able to stop and start and to get up on their own if they fall and they can put their skis on by themselves and that they have experience riding the chairlift.” A minor can assume the risk of injury. Whether or not a nine year minor can I do not know. The specific age were a minor can assume a risk varies by state and by age. However, the plaintiff did have experience skiing and as such might have assumed the risk.
Another outside claim might be that the mother was a fault for signing here son up for a class that was beyond his abilities. Maybe the minor should have been enrolled in a Level 1 or 2 class. However, this claim would be subject to the claim that the instructor should have moved the child if the child was in the wrong class by lunch. This argument may hold if the accident occurred in the morning before the ski instructor had the opportunity to review the student.
The court also brought up and pointed out that the father had not signed any of the documentation. Not a legal point, but an interesting one in this case.
Image via Wikipedia
So Now What?
1. Get the best most well written release you can that specifically stops lawsuits by parents.
2. Educate the minor in advance, and probably the parents so you might have an assumption of the risk defense.
3. Be very wary with kids. If it appears that the minor cannot ski with the rest of the class, either move the minor to another class or move the class to a slope the minor can handle.
What do you think? Leave a comment.
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Alabama follows the majority of states and does not allow a parent to sign away a minor’s right to sue.
Posted: June 20, 2011 Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: Adventure travel, Alabama, Child, Indiana, JimMoss, Minor, Motorcross, Outdoor recreation, Parental Responsibility, Parental Rights, Rock climbing, United States district court Leave a commentJ.T., Jr., a minor v. Monster Mountain, Llc, 2010 U.S. Dist. LEXIS 130407; 78 Fed. R. Serv. 3d (Callaghan) 182
This is an interesting case based on who actually signed the release on behalf of and in an attempt to bind the minor.
The minor traveled from Indiana to Alabamato ride at the defendant’s motocross facility. The parents of the minor signed a power of attorney giving the
Image via Wikipedia
coach the authority to sign on their behalf “all release of liability and registration forms and to give consent for medical treatment” for the minor while on the trip. This was a proper power of attorney, signed by the parents and notarized.
The coach then registered the plaintiff each day and signed the release on the plaintiff’s behalf.
While riding on the third day the minor went over a jump. While airborne he saw a tractor that had been parked on the track which he collided with. The minor sued in Federal District Court for his injuries claiming the act of leaving the tractor on the track was negligent.
Summary of the case
Under Alabama law, like in most jurisdictions a minor cannot contract. That is done so that adults will not take advantage of minors. The exception to the rule is a minor can contract for necessities. Necessities are food, utilities, etc., those things necessary to live.
Also under Alabama law, and most other states, a parent cannot sign away a minor’s right in advance except in with regard to insurance. A parent can sign away a minor’s right in an insurance policy with regard to the subrogation right in the insurance policy. The court reasoned the minor cannot have the benefits of the insurance without the responsibility also.
So Alabama is like the majority of states. A parent cannot sign away a minor’s right to sue and a minor cannot contract or sign a release.
So Now What?
In most states, the only real defense available to stop a lawsuit by a minor is assumption of the risk. Because a minor cannot contract, the minor cannot agree to assume the risk in writing. You the outdoor business or program must be able to show that you gave the minor the information so the minor knew the risks and accepted them. It is up to the trier of fact to determine if the minor understood those risks.
1. Make your website an information resource. Any and every question about the activity should be there including what the risks are and how to deal with them. Put in pictures, FAQ’s and videos. Show the good and the bad.
2. Provide a bonus or a benefit for completing watching and reviewing the website. If a minor collects the bonus or benefit then you have proof the minor know of the risks.
3. Review the bigger risks and the common ones with all minors before they are allowed to participate in the activity.
4. Still have the parents sign a release. Remember the parents have a right to sue for the minor’s injuries. A release will stop the parent’s suit. Put in the release that the parent has reviewed the website with the minor to make sure the minor understands the risks of the activity.
What do you think? Leave a comment.
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Iowa does not allow a parent to sign away a minor’s right to sue.
Posted: May 10, 2011 Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: Child, Iowa, Iowa Supreme Court, Jim Moss, Minor, Parental Responsibility, Parental Rights, University of Northern Iowa, Upward Bound Leave a commentGalloway v. State of Iowa, 790 N.W.2d 252; 2010 Iowa Sup. LEXIS 109
Iowa follows the majority of states finding that the state has an interest in protecting kids from allowing their parents to think.
This case was brought by a parent whose child was hit by a car on an out of state field trip. The trip was an Upward Bound trip sponsored by University of Northern Iowa. The mother sued the State of Iowa, parent entity of the university. The University filed a motion for summary judgment based on two releases signed by the mother. The trial court granted the motion for summary judgment, and the case was appealed to the Iowa Supreme Court. There is no information on whether there was a decision by the Iowa Appellate Court or if the appeal was directly to the Iowa Supreme Court.
An appeal from the trial court to the supreme court of a state can be done, but it is very rare and only for unusual or immediate circumstances.
The sole issue the court in its opinion discussed was the issue of whether a parent could sign away a minor’s right to sue in a preinjury release.
What are you supposed to say about a case when the court quotes this statement from the plaintiff’s argument?
In particular, she [plaintiff] 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. [Emphasis added]
Parents are ill equipped to assess the nature of the risk facing a child? Isn’t that what parenting is all about? When I see a parent reading the ingredients on a box in the supermarket with a toddler in the cart is the parent doing that to have something to talk about that night?
The court then stated:
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. [Emphasis added]
The court followed that statement with:
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.
So the potential risk to the coffers of the State of Iowa is greater than the need to be a responsible parent. The court sent the case back to the trial court for trial.
So? Summary of the case
There were several issues that this court ignored in favor of getting to the conclusion it wanted to reach. The releases, two of them, were poorly written and did not provide any information as to what the risks of the trip were. The releases appear to be set out in full in the decision which is below.
This case was not over after this decision. The plaintiff is a fourteen year old girl who was hit by a car crossing the street. There is probably a great assumption of the risk defense that would either significantly lower the damages or possibly allow the University/State to win. If this case is not settled after this decision, then there is a significant issue at trail as to whether the child assumed the risk of the injury.
However, Iowa, with this decision falls into the category where any organization or group dealing with kids must do so very carefully. Any child without health insurance is going to look for ways to pay the bills. Any child with insurance will have an insurance company looking for reimbursement for their losses because of the injuries.
So Now What?
Isn’t that another issue that parents are tasked with? What role is a parent going to play in the future based on the reasoning of the Iowa court? It seems that what the child is going to wear to school will be the limit. If the parent is presented with the proper information the parent should decide whether the financial risks and their resources are adequate to deal with the issues. If the parent is not presented with the proper information is it not the parent’s responsibility to study and find out what those risks are?
Youth organizations and youth group’s sole chance it to have a bill passed in the Iowa legislature that over turns this decision.
What do you think? Leave a comment.
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Summer camp supervision issues are always part of any lawsuit and tough to determine in New York.
Posted: May 2, 2011 Filed under: Assumption of the Risk, Summer Camp | Tags: Adventure travel, Child, JimMoss, Minor, New York, Outdoor recreation, Parental Responsibility, Parental Rights, Prank, Rock climbing, Ropes course, Summer Camp Leave a commentKosok v. Young Men’s Christian Association of Greater New York, 24 A.D.2d 113; 264 N.Y.S.2d 123; 1965 N.Y. App. Div. LEXIS 3042
As long as there was no notice of a problem and no rule of the camp or standard for the camp, assumption of the risk is a valid defense against minors claim.
New York had dozens of decisions concerning lawsuits by injured campers. It is going to take months to figure out if there is any discernable rule or idea on how to run a camp in New York. This decision is a start.
At this camp groups of boys were divided into cabins by age groups. After lunch “camp regulations” required a rest period. Younger campers had to rest on their beds; older boys were just required to do sedentary activities. (Why you don’t want to wear out kids, by the time they go to bed at camp is beyond me?)
During one of the rest periods, a group of boys threaded a fishing line over a rafter and attached a galvanized bucket to it. When someone would walk underneath the bucket, they would lower it where it would hit the unsuspecting camper making a pop. After another camper had the prank played on them the plaintiff was enticed into the cabin where the bucket was dropped. The plaintiff suffered unspecified injuries.
The plaintiff sued the camp and the two boys involved in the prank. The two boys were dismissed from the lawsuit by the trial court. The plaintiff sued for “improper supervision and a failure to provide proper medical care after the accident.” The case went to trial and the jury found for the plaintiff on the supervision claim and for the defendant camp for the medical care claim. The camp appealed.
This decision has great quotes, which have been quoted in numerous other New York decisions, and then, to some extent, seems to be ignored. However, the court found that boys at camp have fun.
Summer camp, it will be seen that constant supervision is not feasible.
[constant supervision] Nor is it desirable. One of the benefits of such an institution is to inculcate self-reliance in the campers which on overly protective supervision would destroy.
A certain amount of horseplay is almost always to be found in gatherings of young people, and is generally associated with children’s camps. It is only to be discouraged when it becomes dangerous. Nothing in the incident itself or the surrounding circumstances indicates any notice to defendant that such was likely to result here.
The court did find that the standard of care for a camp was that of a reasonable prudent parent. That standard though varies with the age of the child.
The court held the jury verdict should be reversed, and the case dismissed because the court found no negligence on the part of the defendant.
So?
This case is 52 years old. It is a still relevant law in New York. However, I believe that based on other New York decisions and the standard of care for campers in New York has changed. Many decisions quote the language of this case, and then find a difference in the facts to hold the camp liable.
So Now What?
To work within the boundaries of these and other cases the best result would be to inform parents and campers of the risk. Pictures, videos, brochures and the website are a start. Have the parents and campers to acknowledge that there is horseplay when kids get together and have them acknowledge the kids get hurt.
This should be in a written document that refers to the website as the source of more information or even better information they have reviewed. An assumption of the risk form for the minors and a release for the parents should do more than just have the simple legal language of a release. Each document, or the same document, if written correctly, should identify the activities the minors will be engaging in and the possible risks for all of those activities.
When you are creating your website, don’t be afraid to show kids being unsuccessful as well as successful. Kids fall while playing sports, kids get tagged out running bases and canoes tip over throwing kids in the water. Follow the old Clint Eastwood movie; show the good and the bad, maybe the ugly.
A scrape on a camper is a good way to show parents that you have a medical team on hand. It also lets parents realize that kids are outdoors, having fun and probably getting hurt.
The more you can prove you informed the parents and the campers of the risks the greater your chances at success in keeping everyone happy and out of court.
What do you think? Leave a comment.
Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
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Release stops suit for falling off horse at Colorado summer Camp.
Posted: April 18, 2011 Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue), Youth Camps | Tags: Appellate Court, Child, Colorado, Gross negligence, Hamill, Minor, Parental Responsibility, Parental Rights, Rock climbing, Summary judgment, Summer Camp Leave a commentHamill v. Cheley Colorado Camps, Inc., 2011 Colo. App. LEXIS 495
I always enjoy it when people with money, sue to get more money…..
In this case, the minor plaintiff fell off a horse and suffered a broken arm. She sued for her damages. What makes this sort of amusing is the minor had attended the camp two prior years. Her mother has signed the release three consecutive times. However, the plaintiff sued.
The allegations in the complaint were the wrangler had inappropriately saddled the horse she rode. This is a classic claim used to get around equine liability acts. Equine liability acts are 100% effective. Since they have been passed no horse has been sued. However, suits against horse owners have increased.
For additional articles about equine (horse) lawsuits and why Equine Liability Acts have little value see: $2.36 M awarded to a boy kicked by horse during inner-city youth program and $1.2 M award in horseback riding fatality in Wyoming.
The district court (trial or first court) granted the defendant camp’s motion for summary judgment. And the Plaintiff appealed. The basis for the appeal was:
she was a minor and her mother did not make an informed decision, the agreement did not extinguish her negligence claims and that disputed material facts preclude the grant of summary judgment on her gross negligence claim.
The first issue the court reviewed was whether the release was valid under Colorado law. The court found there were four tests that had to be met for the release to be valid.
(1) the existence of a duty to the public;
(2) the nature of the service performed;
(3) whether the contract was fairly entered into; and
(4) whether the intention of the parties is expressed in clear and unambiguous language.
B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998) (citing Jones, 623 P.2d at 376).
The court found the first two tests were met because recreational activities create no duty to the public and are not necessary for living.
The next test was whether the contract was fairly entered into. This is a case of whether the injured party had the opportunity to go somewhere else or not participate. Whether one party was at the mercy of the other party because of unequal bargaining power. However, again, recreational activities are not something that a parent or participant is forced to undertake. On top of that the mother admitted she voluntarily signed the release…..three times.
More importantly the court found the plaintiff could have attended other camps. She was not forced to attend the defendant camp.
The last test also can be examined multiple ways. First way is, is the agreement plan on its face is it written in such a way that the parties understand what it says or should have understood what it said. Another way is whether the agreement, the release, clearly evidenced the intent of the party’s.
Here you can release one party from negligent conduct as long as the intent of the parties is clearly expressed in the contract. Here the release expressly contained language that the court found was clear to the plaintiff and her mother of the intent of the release.
The agreement sufficiently placed Hamill’s mother on notice that the “[e]quipment used . . . may break, fail or malfunction” and that “counselors . . . may misjudge . . . circumstances.” The breadth of the release persuades us that the parties intended to disclaim legal liability for negligence claims. Indeed, misjudging a situation can amount to negligence.
The classic I now did not understand the release is also looked at this point, and the court rejected that argument.
An agreement with such plain and unambiguous terms will not fail because one of the parties, in hindsight, now claims to have misunderstood the scope of that agreement — to govern only conduct outside of Cheley’s control — based on ambiguities not readily apparent within the four corners of the agreement.
The court succinctly summed up its decision about the release stating:
Because the agreement did not implicate a public duty, did not involve an essential service, was fairly entered into, and it plainly expressed the intent to release prospective negligence claims, we hold that the agreement is valid.
The court then reviewed the recently enacted Colorado statute allowing a parent to sign away a minor’s right to sue C.R.S. § 13-22-107. A recent decision by the Colorado Appellate court had thrown out a release signed by a mother because it was not sufficient to meet the requirements of the statute. See Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele which discussed the case Wycoff v. Grace Community Church of the Assemblies of God, 2010 Colo. App. LEXIS 1832.
The statute requires the parent who is signing a release for a minor to be voluntary and informed. The court stated that “A parent’s decision is informed when the parent has sufficient information to assess the potential degree of risks involved, and the extent of possible injury.” quoting Wycoff v. Grace Community Church of the Assemblies of God, 2010 Colo. App. LEXIS 1832.
Here the mother and the plaintiff knew of the risks because the plaintiff had attended the camp two prior years and had ridden horses those two years.
The final argument was made that the release did not bar claims for gross negligence. However, the court found the complaint and the other documents in the case did not plead any facts giving rise to a claim that would be a gross negligence claim. Under the Colorado law gross negligence is “willful and wanton conduct, that is, action committed recklessly, with conscious disregard for the safety of others.” Nothing in the documents indicated the defendant had acted willfully or wantonly.
One interesting part of this case was a statement quoted in the case from a deposition of the mother. The defendant’s attorney referred to Christopher Reeves, who suffered a fall from a horse becoming a quadriplegic and eventually died from the injuries. The mother answered she personally knew Mr. Reeve. If you want to do a little research, match the names of the parties, and determine who would know other movie stars.
So?
Again and again, and again, make sure you have a well written release. That was the first and best thing done in this case. The release stood up to scrutiny by the trial court and the appellate court.
The next thing is always have good facts. The court pointed out the wrangler checked the saddle two or three times before the plaintiff rode the horse which eliminated the gross negligence argument. Good facts do not mean to only defend yourself when you are going to win. It means to do things right, and you don’t have to worry and if you do have a problem you will win.
Here the wrangler had been well trained in how to deal with the situation and problems of kids at summer camps riding horses. Before the plaintiff was allowed to mount the horse the saddle was checked and double checked.
So Now What?
Hire well, train well and treat well; the three ideas to keep employees part of your defense team. Your employees do not need to lawsuits and not have a lawsuit become a forum for any employee to come back at you.
See 7 Mistakes Made by People, who are called Defendant. Hire good people to begin with. Work hard at hiring people who like people and understand the job. The job is not to show off to little kids about how great a horseman you are, the job is to get kids on horses and have them have a good time. The job is to have the kids leave the ring the same way they entered the ring with a big grin on top of a horse.
Never hire for skills except people skills. You can teach anyone to ride a horse, row a raft or run a ropes course. Finding someone who can remember to double check everything, deal with a problem child and entertain at the same time is a little harder. However, those people are out there, work harder and find them.
7 Mistakes Made by People who are called Defendant.
1. Hire and retain Uncaring Employees: Hire Well, Train Well, and Treat Well
2. Failing to Know Your Customers and why they are buying from you.
3. Failing to Treat Your Customers the Way They Want to Be Treated:
4. Examining the problem from Your Perspective: Your customer sees the problem differently than you. The customer may not even understand the problem.
5. Placing a ridiculous value on principles and pride. Principles & Pride Goethe before a Lawsuit
6. Never know Why you are being sued: Sticking your head in the sand, or passing the problem to a lawyer does not resolve the problem.
7. Forgetting What Your Mother Taught You: If you act like your mother taught you, you won’t be sued.
What do you think? Leave a comment.
Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
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Statutes and prospective language to allow a parent to sign away a minor’s right to sue.
Posted: March 16, 2011 Filed under: Minors, Youth, Children | Tags: Alaska, Child, Children Youth and Family, Colorado, Florida, Legal guardian, Minor, parent, Parental Responsibility, Parental Rights Leave a commentNow is the time to move a statute like this forward in your state.
Three states allow a parent to sign away a child’s right to sue by statute: Alaska, Florida and Colorado. Five (maybe 6) states allow a parent to sign away a minor’s right to sue by Supreme Court Decision. See States that allow a parent to sign away a minor’s right to sue. With more legislatures leaning to the conservative side, now is the time to introduce and get a law like these passed in your state. To assist you, at the end I have included language that I would propose for the statute.
Colorado
C.R.S. §§13-22-107. Legislative declaration – definitions – children – waiver by parent of prospective negligence claims
(1) (a) The general assembly hereby finds, determines, and declares it is the public policy of this state that:
(I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist;
(II) Public, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits, and without the measure of protection these entities may be unwilling or unable to provide the activities;
(III) Parents have a fundamental right and responsibility to make decisions concerning the care, custody, and control of their children. The law has long presumed that parents act in the best interest of their children.
(IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk;
(V) These are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education; and
(VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.
(b) The general assembly further declares that the Colorado supreme court’s holding in case number 00SC885, 48 P.3d 1229 (Colo. 2002), has not been adopted by the general assembly and does not reflect the intent of the general assembly or the public policy of this state.
(2) As used in this section, unless the context otherwise requires:
(a) “Child” means a person under eighteen years of age.
(b) For purposes of this section only, “parent” means a parent, as defined in section 19-1-103 (82), C.R.S., a person who has guardianship of the person, as defined in section 19-1-103 (60), C.R.S., a person who has legal custody, as defined in section 19-1-103 (73), C.R.S., a legal representative, as defined in section 19-1-103 (73.5), C.R.S., a physical custodian, as defined in section 19-1-103 (84), C.R.S., or a responsible person, as defined in section 19-1-103 (94), C.R.S.
(3) A parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.
(4) Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.
Florida Statute on Guardian right to sign away a minor’s right to sue.
Fla. Stat. § 744.301 (2010)
§ 744.301. Natural guardians
(3) In addition to the authority granted in subsection (2), natural guardians are authorized, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a commercial activity provider, or its owners, affiliates, employees, or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from an inherent risk in the activity.
(a) As used in this subsection, the term “inherent risk” means those dangers or conditions, known or unknown, which are characteristic of, intrinsic to, or an integral part of the activity and which are not eliminated even if the activity provider acts with due care in a reasonably prudent manner. The term includes, but is not limited to:
1. The failure by the activity provider to warn the natural guardian or minor child of an inherent risk; and
2. The risk that the minor child or another participant in the activity may act in a negligent or intentional manner and contribute to the injury or death of the minor child. A participant does not include the activity provider or its owners, affiliates, employees, or agents.
(b) To be enforceable, a waiver or release executed under this subsection must, at a minimum, include the following statement in uppercase type that is at least 5 points larger than, and clearly distinguishable from, the rest of the text of the waiver or release:
Alaska
Alaska Stat. § 09.65.292 (2011)
Sec. 09.65.292. Parental waiver of child’s negligence claim against provider of sports or recreational activity
(a) Except as provided in (b) of this section, a parent may, on behalf of the parent’s child, release or waive the child’s prospective claim for negligence against the provider of a sports or recreational activity in which the child participates to the extent that the activities to which the waiver applies are clearly and conspicuously set out in the written waiver and to the extent the waiver is otherwise valid. The release or waiver must be in writing and shall be signed by the child’s parent.
(b) A parent may not release or waive a child’s prospective claim against a provider of a sports or recreational activity for reckless or intentional misconduct.
(c) In this section,
(1) “child” means a minor who is not emancipated;
(2) “parent” means
(A) the child’s natural or adoptive parent;
(B) the child’s guardian or other person appointed by the court to act on behalf of the child;
(C) a representative of the Department of Health and Social Services if the child is in the legal custody of the state;
(D) a person who has a valid power of attorney concerning the child; or
(E) for a child not living with the child’s natural or adoptive parent, the child’s grandparent, aunt, uncle, sister, or brother who has reached the age of majority and with whom the child lives;
(3) “provider” has the meaning given in AS 09.65.290;
(4) “sports or recreational activity” has the meaning given in AS 09.65.290.
My suggestion on how the law should read.
Legislative declaration – definitions – minor children – waiver by parent or guardian of prospective negligence claims
(1) (a) The general assembly hereby finds, determines, and declares it is the public policy of this state that:
(I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist;
(II) Public, private, and non-profit entities providing these essential activities to children in _____________ (state) need a measure of protection against lawsuits, and without the measure of protection these entities may be unwilling or unable to provide the activities;
(III) Parents have a legal and fundamental right and responsibility to make decisions concerning the care, custody, and control of their minor children. The law has long presumed that parents act in the best interest of their children. Troxel v. Granville, 530 U.S. 57; 120 S. Ct. 2054; 147 L. Ed. 2d 49; 2000 U.S. LEXIS 3767; 68 U.S.L.W. 4458; 2000 Cal. Daily Op. Service 4345; 2000 Daily Journal DAR 5831; 2000 Colo. J. C.A.R. 3199; 13 Fla. L. Weekly Fed. S 365 (Troxel is a US Supreme Court decision that allows a parent to sign away a child’s right to sue. See Courtney Love in Outdoor Recreation Law.)
(IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk;
(V) These are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education; and
(VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.
(a) “Child” means a person under eighteen years of age at the time of incident, loss, injury or accident.
(b) For purposes of this section only, “parent” means a parent, a person who has guardianship of the person, a person who has legal custody, a legal representative, a physical custodian or a responsible person, in temporary custody and control of the minor Child.
(3) A Parent of a Child may, on behalf of the Child, release and waive, in advance, any claim or cause of action against a private, commercial, governmental or non-profit, activity provider, business, program or activity, or its owners, affiliates, employees, volunteers or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from the risk or an inherent risk in the activity or the Child’s prospective claim for negligence.
(4) Nothing in this section shall be construed to permit a parent acting on behalf of his or her child to waive the child’s prospective claim against a person or entity for a willful and wanton act or omission, a reckless act or omission, or a grossly negligent act or omission.
To work you will need to round up everyone who deals with kids. Little League and other youth sports groups, day care centers, youth programs like Scouts, commercial programs like camps, day camps and anyone serving youth as well as major organizations that may be in your state like NOLS and Outward Bound.
Your statutory language may vary based on current state laws and court interpretations, but go for it. You can only lose time and get a civics lesson.
This won’t save you money on your insurance that never happens. However, it may help keep your insurance from going up and keep you out of court.
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Wrong release for the activity almost sinks YMCA
Posted: March 14, 2011 Filed under: California, Release (pre-injury contract not to sue), Summer Camp | Tags: Adventure travel, Baseball Bat, Child, Day Camp, James H. Moss, JimMoss, Minor, Outdoor recreation, Parental Responsibility, Parental Rights, Rock climbing, YMCA 1 CommentA release must apply to the activity and the person who you want to make sure cannot sue you.
McGowan et al v. West End YMCA, 2002 Cal. App. Unpub. LEXIS 3018
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In this case, a mother signed her son up to attend a day camp sponsored by the YMCA. While attending the day camp, the child was accidentally hit in the head by another child with a baseball bat. The mother sued for the child’s injuries.
The YMCA argued that the mother had signed a release, and therefore, the YMCA should be dismissed. The mother argued that the release only applied to her, not her child because the release was unclear as to who was being released in the document. (The mother argued the release was required for her to walk around the YMCA to sign her son up for the camp.)
In this case, the YMCA used its general release for people on the premises of the YMCA as a fitness facility, for its day camp. The release did not indicate a parent would be signing for the child nor did the release look to the issues the child would encounter, only an adult using the YMCA or any other gym.
The mother argued because the release did not identify her son, the injured party, as who the release applied to the release only applied to her while she was on the premises. Nothing in the document indicated that the mother was signing a release on behalf of her son.
Like most releases used in gyms and fitness centers it is written for the adult signing up to use the gym.
Under the law, “An agreement exculpating the drafter from liability for his or her own future negligence must clearly and explicitly express that this is the intent of the parties.”
What saved the YMCA was a technicality in the language of the release. To go to the day camp, the child attending must be a member of the YMCA. The mother of the injured child was not a member of the YMCA. However, her son was. Because the release referred to the YMCA member as the person giving up their right to sue, the court held the release applied to the child not the mother. This language allowed the court to find for the YMCA.
So?
Releases are not documents you can merely find on the internet or put together based on language that sounds good. Think about the contract you used to purchase your house. It was a 10 to 20 page document used to buy something of value greater than $100,000 or so.
If someone is suing you for several million dollars do you want to rely on a document that you put together or worse stole from the business down the street.
Here again you have to make sure your release is properly written. You may have several different releases for different parties or activities. I commonly suggest that people use different paper to print the different release forms. Here the YMCA should have had a general release for use of its fitness and other facilities and a release for its day camp. One could have been printed on white paper and the other on green. Even better, put the release online and save paper.
Your release must identify who is protected by the release and who the release is going to stop from suing. In many cases, one parent will sign on behalf of a child. However, in some states, unless the language is clear, that parent may not be preventing the other parent from suing. Identify every person who can sue in the release as well as every person who cannot be sued. When in doubt, have both parents sign the release.
For information on other states where a parent can sign away a minor’s right to sue see: States that allow a parent to sign away a minor’s right to sue–Updated 2011
What do you think? Leave a comment.
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Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele.
Posted: February 28, 2011 Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: Child, Church Group, Colorado, Colorado Supreme Court, Information, Insurance, Law, Minor, Parental Responsibility, Parental Rights, Plaintiff, Supreme Court, United States, Youth Group Leave a commentWycoff v. Grace Community Church of the Assemblies of God, 2010 Colo. App. LEXIS 1832
The case is a little confusing to read because there was another case that was appealed by the same parties whom this case refers to. Additionally, the act of the trial court in reducing the damages is confusing. However, this case is a very clear example of how a badly written release is going to cost the church and its insurance company millions.
A church group had taken kids to a camp for a “Winterama 2005.” The church had rented the camp for the weekend. The plaintiff was 17 and not a member of the church. Her parents had paid a reduced fee for her to attend the activity. As part of that registration her mother signed a “Registration and information” form. One of the activities was pulling them behind an ATV on an inner tube on a frozen lake.
There was a large boulder embedded in the lake. On the second loop, the plaintiff’s inner tube hit the boulder breaking her back.
The plaintiff’s mother had signed the “Registration and Information” form. On the form was the following sentence.
I will not hold Grace Community Church or its participants responsible for any liability, which may result from participation.
The case went to trial, and the jury returned a $4M verdict in favor of the plaintiff. The defendant and plaintiff appealed after the judge reduced the damages to the limits of the insurance policy of the church, $2M plus interest.
The appellate court first looked at Colorado case law on releases and the legislative history of § 13-22-107(3), C.R.S. 2010. That statute, C.R.S. § 13-22-107(3), was enacted to allow a parent to sign away a minor’s right to sue. The statute, and the decision in Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981), has a requirement that the parental decision must be “informed” and with the intent to release the [defendant] from liability. Jones v. Dressel was the first Supreme Court review of releases in the state of Colorado as they applied to recreational activities.
The court looked at the language in the “Registration and Information” form to see if it informed the parents of the activities and risks their child would be undertaking. The court looked at the language and found:
There is no information in Grace’s one-page registration form describing the event activities, nothing describing the associated risks. Stating that the children would participate in “Winterama 2005 and all activities associated with it” does not indicate what the activities would involve and certainly does not suggest they would include ATV-towed inner-tube excursions around a frozen lake.
The court also looked at prior decisions concerning releases and found that “in every Colorado Supreme Court case upholding an exculpatory clause. The clause contained some reference to waiving personal injury claims based on the activity being engaged in.”
The court concluded that:
Grace’s [the defendant’s] form made no reference to the relevant activity or to waiving personal injury claims. The operative sentence (the third one in a paragraph) states only that plaintiff will not hold Grace “responsible for any liability which may result from participation.” Surrounding sentences address other issues: the first gives permission to attend; the second consents to medical treatment; and the fourth agrees to pick up disobedient children.
… nowhere does the form provide parents with information allowing them to assess the degree of risk and the extent of possible injuries from any activity. The form is legally insufficient to release plaintiff’s personal injury claims.
The court then looked at the second major issue that has been surfacing in many outdoor recreation cases of late. The plaintiff sued claiming a violation of the duties owed by the landowner, a premises liability claim. That means that the landowner owed a duty to the plaintiff to warn or eliminate dangers, which the landowner failed to do.
The defendant argued that it was not the landowner; it had just leased the land for the weekend. However, the court found this argument lacking. The premise’s liability statute § 13-21-115(1), C.R.S. 2010, defines landowner to include someone leasing the property.
This places two very important burdens on anyone leasing land or using land.
- They must know and identify the risks of the land before bringing their clients/guests/members on the land.
- The release must include premise liability language.
The second one is relatively easy to do; however, the effectiveness is going to be difficult. The first places a tremendous burden on anyone going to a camp, park or other place they do not own for the day, weekend or week.
- Your insurance policy must provide coverage for this type of claim.
- You need to inspect the land in advance, do a due diligence to make sure you know of any risks or dangers on the land.
- You must inform your guests/members/clients of those risks.
The final issue that might be of some importance to readers is the court reviewed the legal concept of charitable immunity. At one time, charities could not be sued because they “did good” for mankind. That has evolved over time so that in most states charitable immunity no longer exists. At present, and with this court decision, the assets of the charity held may not be levied by a judgment. What that means is after someone receives a judgment against a charity, the plaintiff with the judgment then attempts to collect against the assets of the charity. Some of the assets may not be recovered by the judgment creditor because they are part of the charitable trust.
What does that mean? If you are a charity, buy insurance.
Of note in this case is the plaintiffs are the injured girl and her insurance company: The opinion states “Plaintiff and her insurer, intervenor American Medical Security Life Insurance Company (insurer).” Although set forth in the decision, her insurance company is probably suing under its right in the subrogation clause. A subrogation clause in an insurance policy says your insurance policy has the right to sue under your name or its own name against anyone who caused your damages that the insurance company reimbursed.
So?
As I have said numerous times, your release must be written by an attorney that understands two things.
- Release law
- The activities you are going to engage in.
- The risks those activities present to your guests/members/clients.
- Any statutes that affect your activity and/or your guests/members/clients.
Any release should include a good review of the risks of the activities and a description of the activities so adults and parents can read and understand those risks. Any minor who can read and understand the risks should also sign the release as proof the child assumed the risk. Assumption of the risk works to win cases against minors when the release is thrown out or in those cases where a release cannot be used against a minor.
Find a good attorney that knows and understands your activities, those risks and the laws needed to write a release to protect you.
What do you think? Leave a comment.
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Minnesota decision upholds parent’s right to sign away a minor’s right to sue.
Posted: February 21, 2011 Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue), Youth Camps | Tags: Baseball, Baseball Camp, Child, Coach, JimMoss, Minnesota, Minor, Outdoor recreation, Parental Responsibility, Parental Rights, Summer Camp Leave a commentCase was a baseball camp where the minor was injured during horseplay.
Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
This is a pretty simple case. The defendants operated a baseball camp on the campus of the University of Minnesota. The plaintiff’s mother had signed her son up for the camp, online or electronically. On the last day after lunch a group of students went to the courtyard. The plaintiff sustained a permanent eye injury when they started throwing woodchips from the courtyard at each other.
The father sued on behalf of his son. The trial court, a district court in the opinion, granted the defendant’s motion for summary judgment. The father on his and his son behalf appealed.
The plaintiff first argued that the release, or assumption of the risk agreement as it was termed in the decision, should be “thrown out” because it could not be produced. Because the mother had signed online there was no signed document. On top of that, the system used by the defendant did not produce any document indicating who had signed what documents.
However, the defendant was able to show that the mother had signed other documents just like the release. A roster of those kids that had attended the camp that summer, with the injured minor’s name on it was produced. The camp through a director, also testified that if the mother had not signed the release, the minor would not have been allowed to attend the camp.
The mother’s deposition was also introduced. She could not deny filing out the forms online even though she did not remember the forms.
The plaintiff’s then argued that the language of the release did not cover the injury the minor sustained. The language only spoke to baseball and as such the release only covered injuries that the minor could have received playing baseball. Horsing around during free time therefore, was not covered by the release. The plaintiff also argued the language that excluded the claims; the release sentence was separate from the sentence that identified the risks. As such the release should be very narrowly construed.
Neither argument was accepted by the court. The court found that the release covered more than just baseball, and the release had to be read as a whole so the risk was incorporated into the exculpatory sentence.
The plaintiff then argued the exculpatory clause violated public policy. The court dismissed this argument. The court found that the baseball camp was not educational in nature. The training could be found through other sources and playing baseball was not essential or of great importance to members of the public.
So?
The rules of evidence have a procedure for admitting into trial documents that have been lost. The rule is based on procedure. The procedure to be allowed to go to a baseball camp required a parent to sign many documents. The child would not have been allowed at amp without signing all of the documents. A procedure was set up to show the mother had to have signed the release because her son was at the camp.
You should create a procedure for your business, camp or program. The best one I’ve seen for whitewater rafting was created by Mountain Waters Rafting. Guests were given their PFD’s (life jackets) when they handed in their releases. If a guest had on a PFD, the guest had signed a release.
The more you can identify a procedure that you used the same way every time, the easier to introduce a lost piece of paper.
Electronically, there can be several ways to make sure you can prove a person read and signed the release online. I first suggest you always tie a release into a credit card. The credit card company knows more about the holder of a credit card then you ever will. If the credit is accepted to pay for something on line, and the name on the release matches the name on the credit card you can prove the release was signed. If the trip or camp was paid for a release was signed.
You should also have a system that you are notified that each person has signed the documents. Create a way to download the information, name, address, etc. date and exact time the release was signed to your business computer and do so regularly. That information can be matched up, name, date and time to the credit card and payment used. Match this with your receipt of payment from the credit card company and you should have proof.
Make sure your release is written to cover all the risks of your program, business or activity. Here the language was broad enough the baseball program was covered for horseplay. How often do you feed guests, transport guests, and have guests just walking around that could be a chance to be injured. Your release needs to stop litigation, all types of litigation, not just what you face what you are selling to the public.
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Adult volunteer responsibility ends when the minor is delivered back to his parents.
Posted: October 25, 2010 Filed under: Minors, Youth, Children, New York, Summer Camp, Youth Camps | Tags: Boy Scout, Boy Scouts of America, BSA, Parental Responsibility, Scout Troop, Scouting, Slingshot, Trauma, Volunteer Responsibility Leave a commentThank heavens!
Berlin v. Nassau County Council, Boy Scouts of America, 229 A.D.2d 414, 645 N.Y.S.2d 90
A youth was on a trip with a Scout troop which is a program of the Boy Scouts of America (BSA). Sometime on the trip, the minor bought a slingshot. The slingshot was confiscated by a volunteer leader on the trip. At the end of the trip, the slingshot was given to the parents of the minor.
Later the minor was playing with the slingshot with another youth, and the other youth was injured by the slingshot. Either the minor had gotten the slingshot somehow or the parents had given the slingshot back to the minor, although this was not specifically stated in the opinion.
The parents of the minor injured by the slingshot, the plaintiffs, sued the volunteer adult leaders of the trip for the minor’s injuries.
The court in a succinct and short decision held the adult volunteers were not liable for the minor’s injuries. The basis for the decision was the action of the volunteer in giving the minor back to the parents was a superseding intervening act, which stops the claim.
A superseding act, eliminates the relationship between the damages which caused the injury and the duty owed. That means negligence cannot be proven. The damages are not proximate to the duty owed. Negligence has four parts, all which must be proven:
- A duty
- Breach of the duty
- Injury
- Damages proximately caused by the breach of duty.
The court’s decision says the fourth step cannot be proven because of the superseding act. The parents taking control of their child was an intervening act which the court said did not tie the duty and the damages to together legally. Stated another way, there was no relationship between the act of the volunteer and the injury received by the minor.
The plaintiffs seem to argue that the adult volunteer should not have given the slingshot back to the parents. However, the slingshot was a possession, a piece of property owned by the minor and as such, his parents. The slingshot was given back to the owners as required by the law.
So?
The relationship between a parent and a volunteer who is spending his or her time with the child is tenuous. As a volunteer you must be clear what your responsibilities are and are not going to be, as well as when that responsibility ends. It does not need to be so formal. It can simply be in the trip information that the kids have to be at the church by 7:00 PM and parents must pick their kids up Sunday at 2:00 PM at the church.
Most times, volunteers worry about injuries to the minor as a liability issue. There are other issues that can come up that you should be prepared to deal with.
Search and Rescue costs if a minor is lost can be substantial. (See No Charge for Rescue). Damages to property or injury to other minors can create liability for the adult volunteer responsible. A forest fire started by a minor can be costly. Even though most state courts will not allow a parent to release the claims of a minor for injuries, courts will allow releases or contracts where the parent agrees to pay for other claims the minor may create.
You can inform the parent and make sure they understand (meaning a written document) that they are responsible for any damages the minor may create for a reason other than injuries to themselves. I would include damages for the minor’s injuries on a different form. You do not want the court to throughout one release for the minor’s injuries when what you needed was protection for the damages done for the minors.
What do you think? Leave a comment.
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